Bangalore District Court
K.S.Suresh vs ) K.T.Srinivasan on 28 September, 2018
IN THE COURT OF XLIV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-45)
DATED THIS THE 28TH DAY OF SEPTEMBER 2018
-: PRESENT :-
Shri. SHIVARAMA.K, B.Com., LL.M.,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5098/2013
Plaintiff: K.S.Suresh, S/o. Subramanya
Shastry.K, Aged about 45 years,
R/at No.200, 12th Phase, 2nd
Stage, Nagarbhavi, Bangalore.
(By Sri.N.Paramesh, Advocate)
/ vs /
Defendants: 1) K.T.Srinivasan, S/o.K.Thyagarajan,
Aged about 72 years, R/at No.286,
Old Post Office Road, Shimoga-02.
2) Smt.Shobha K.Bhandarkar, W/o.
K.S. Bhandarkar, Aged about 65
years, R/at:T-7, 3rd Floor, "Nanda
Comforts", 15th Main, Near Kidney
Foundation, Padmanabhanagar,
Bangalore.
3) H.V.Prakash, S/o. late H.Vittal
Bhat, Aged about 63 years,
R/at:M.I.G.319, HUDCO Colony,
Kallahalli, Shimoga.
4) H.V.Udaya, S/o. late H.Vittal Bhat,
Aged about 59 years,
R/at:M.I.G.319, HUDCO Colony,
Kallahalli, Shimoga.
2 O.S.NO.5098/2013
5) Smt.Usha @ Aarathi U Despande,
W/o. Udayanarayana Despande,
Aged about 56 years, R/at
No.3359/2-A, 2nd Block,
Deshpandhe Chawl, Gondhalli
Galli, Belgaum.
6) S.Venkatesh Babu, S/o.M.Srinivas,
Aged about 38 years, R/at No.8, 4th
Cross, 7th Block, Jayanagar,
Bangalore 560 028.
(D1:By Sri.C.R.Ravishankar, Advocate
D2 to 5: By Sri.K.Narasimha Murthy,
Advocate
D6:By Sri.G.R.Chandrashekar, Adv.)
Date of Institution : 15.07.2013
Nature of the suit : Declaration & Possession
Date of recording evidence: 4.1.2016
Date of Judgment : 28.09.2018
Total Duration : Day/s Month/s Year/s
13 02 05
JUDGMENT
Suit is for the relief of declaration that the plaintiff is the owner of the suit property by virtue of the Will deed dt.9.9.2010 executed by one Smt.H.V.Asha and to declare that the release deed dt.2.7.2011 executed by defendant No.2 to 4 in favour of defendant No.5, the Sale Deed dated 3 O.S.NO.5098/2013 22.7.2011 executed by defendant No.5 in favour of defendant No.6 and Sale Deed dated 24.9.2011 executed by defendant No.6 in favour of defendant No.5 are null and void and does not bind the plaintiff and for possession of suit property in favour of the plaintiff.
2. Suit property is house property bearing No.200, situated at Nagarbhavi 2nd Stage, 12th Block, Bangalore, measuring East to West 9.15 meters and North to South 15.50 meters, totally measuring 141.83 sq.meters built up residential house with RCC roofing within the boundaries stated in the plaint.
3. It is not in dispute that defendant No.2 and 5 are the sisters and defendant No.3 and 4 are the brothers of Smt.H.V.Asha who is the testator of the Will deed dt.9.9.2010. Further, it is not in dispute that plaintiff is the elder sister's son of defendant No.1. Further, it is not in dispute that defendant No.1 was working as Deputy Director in the office of Town Planning and deceased H.V.Asha was working as Senior typist in the office where in defendant No.1 was working. Further, it is not in dispute that wife of 4 O.S.NO.5098/2013 defendant No.1 by name Smt.Vijaya is still alive. Further, it is not in dispute that defendant No.5 had received the DCRG and other benefits relates to Smt.H.V.Asha after her death. Further, it is not in dispute that Smt.H.V.Asha expired on 18.2.2011 and she was retired from the service on 31.1.2011. Further, it is not in dispute that BDA had allotted the site No.200, in favour of Smt.H.V.Asha and Smt.H.V.Asha had constructed a residential house in the said site. Further, it is not in dispute that plaintiff was working as Assistant in the Department of Horticulture, Bangalore and he is still in service. Further, it is not in dispute that he is married one Gayathri. Further, it is not in dispute that plaintiff herein had filed a petition u/s.276 of Hindu Succession Act, for grant of probate of the Will dated 9.9.2010 in P&Sc.218/2011 and on 10.6.2013, the petitioner got withdrawn the said petition with a liberty to file suit on the same cause of action. Further, it is not in dispute that the mother of H.V.Asha and the 5th defendant were shown as nominee in the service register relates to H.V.Asha. Further, plaintiff disputes that defendant No.2 to 5 had executed release deed dt.2.7.2011 in favour of defendant No.5 and defendant No.5 sold the suit 5 O.S.NO.5098/2013 property to 6th defendant under Sale Deed dated 22.7.2011 and thereafter, 5th defendant repurchased the suit property from 6th defendant under Sale Deed dated 24.9.2011.
4. It is the further case of the plaintiff that while H.V.Asha was in service, she had married defendant No.1 in the year 1994 and he was staying along with Smt. H.V.Asha in the said house and had stayed for more than 20 years at there. Thereafter, the plaintiff was taking care of said Smt. H.V.Asha in her old age ailments. Hence, with the said relation, she had executed a Will deed dt.9.9.2010 in favour of the plaintiff bequeathing the suit property in favour of him. Further, since she had executed a Will, defendant No.1 cannot claim the suit property. Further, Smt. H.V.Asha and defendant No.1 had no issues in their wedlock. Further, since defendant No.2 to 5 appeared in P&Sc.No.218/2011 filed by the plaintiff seeking probate of the Will and had filed objections denying the Will, he had withdrawn the said petition with a liberty to file suit, thereby, he had filed the suit. Further, after filing the objection in P&Sc. by defendant No.2 to 5, he came to know that defendant No.2 to 4 in collusion with the 6 O.S.NO.5098/2013 defendant No.5 created a release deed in respect of suit property that defendant No.2 to 4 had executed the same in favour of defendant No.5. Further, based on the said alleged release deed, defendant No.5 colluded with defendant No.6 got executed sale deed on 22.7.2011 in favour of defendant No.6.
5. It is the further case of the plaintiff that he had resided in the suit property till 3rd week of July 2011. Further, defendant No.6 being the Corporator of BBMP and son of Ex-MLA colluding with defendant No.2 to 5 using their high influence power thrown out the plaintiff from the suit property. Further even though defendant No.6 was a party in the P&Sc. proceedings during the pendency of the said case, defendant No.6 had executed a sale deed in favour of defendant No.5 on 24.9.2011 in respect of suit property. Further, the deceased Smt. H.V.Asha had executed Will deed with love and affection to the plaintiff while she was hale and healthy and in sound state of mind.
6. Defendant No.1 even though represented by the counsel did not file written statement and contest the case. Defendant No.5 filed the written statement 7 O.S.NO.5098/2013 and defendant No.2 to 4 had adopted the same by filing a memo to that effect. It is the case of the defendant No.2 to 5 that the plaintiff had filed a suit in O.S.No.5115/2011 against her and her husband in respect of suit property for permanent injunction. The said suit came to be dismissed for non- prosecution on 30.8.2011. Further, the plaintiff should have claimed all the relief in the said suit. Hence, the present suit is hit by Order II Rule 2 of C.P.C. Further since the issues in the present suit and in the former suit are similar, the suit is hit by res-judicata. Further, the plaintiff has not valued the subject matter of the suit on each prayer u/s.38 of Karnataka Court Fees & Suits Valuation Act. Hence, the payment of court fee and the valuation made is not correct. Further, since defendant No.1 was the immediate boss to Kumari H.V.Asha, by taking undue advantage, he has taken all the original documents from her and has given to the plaintiff to file suit. Further, defendant No.1 had fabricated all the documents to knock away the suit property owned by H.V.Asha. Further, 1st defendant had filed a suit in O.S.No.5364/2011 for the relief of injunction against 5th defendant and the same was withdrawn on 29.7.2013. Further, Kumari H.V.Asha 8 O.S.NO.5098/2013 had not at all married the 1st defendant and the 1st defendant is stranger to Kumari H.V.Asha. Further, Kumari H.V.Asha alone was residing in the suit property and she died as a spinster at Shimoga and after her death, 5th defendant has been in physical possession and enjoyment over the suit property and as on the date of written statement (i.e. on 11.10.2013), her tenant was in occupation of the suit property. Further, defendant No.1 got death certificate of H.V.Asha by showing his name as husband of H.V.Asha and thereafter, City Municipal Council, Shimoga, by virtue of the approach of 3rd defendant had initiated proceedings in RBD/CR/03/2010-11 and had passed an order on 30.4.2011 to remove the name of 1st defendant suffixed to the name of H.V.Asha in the death certificate and incorporated her father's name, and a fresh death certificate was issued on 10.5.2011 by showing as H.V.Asha was the daughter of late H.Vittal Bhat. Further, the Will deed dt.9.9.2010 is surrounded by suspicious circumstances. Further, there is no explanation or reasons to disinherit her legal heirs. Further, H.V.Asha herself had declared before the department that she was unmarried. Further, the alleged Will deed dt.9.9.2010 is a 9 O.S.NO.5098/2013 fabricated, concocted, created one and the signature of H.V.Asha was forged by 1st defendant to knock off the suit property. Further, the 1st defendant had married one Vijaya and he had three children in the wedlock and a grand child.
7. Further, plaintiff and 1st defendant are utter strangers to H.V.Asha and they are no way related to her. Further, defendant No.2 to 4 had executed GPA in favour of 5th defendant authorizing her to represent the case and to do any acts on her behalf.
8. It is the case of defendant No.6 as contended in the written statement that court fee paid is insufficient. Further, he was Corporator of BBMP as on the date of written statement been filed and he was son of Ex-MLA. Further, he had purchased suit property from defendant No.5 and after verification of title and ownership of the suit property and after the sale deed been executed on 22.7.2011, he came to know about the dispute between plaintiff and other defendants. Thereby, he has reconveyed the subject property to defendant No.5 on 24.9.2011. Hence, he has no manner of right, title and interest over the suit property. Further, to extract the money from 10 O.S.NO.5098/2013 him, the plaintiff had filed the suit. Hence, it is sought to dismiss the suit.
9. On the basis of the material proposition of fact and law affirmed by the plaintiff and denied by the defendants, this court has framed the issues and additional issues as under:
1) Whether the plaintiff proves that H.V.Asha was a spinster and he was treated as her son during her life time?
2) Whether the plaintiff proves that H.V.Asha has executed a Will on 9.9.2010, bequeathing the suit property in his favour and after the death of testator, he came in possession of the suit property as its absolute owner and resided in it?
3) Whether the plaintiff proves that the defendant No.6 under the guise of purchase of the suit property from the 5th defendant has unlawfully dispossessed him colluding with defendants 2 to 4 from the suit property?
4) Whether the plaintiff proves his right of recovery of the suit property from the defendants on the strength of Will said to be executed by H.V.Asha?
5) Whether the 5th defendant proves that H.V.Asha while working in Town Planning Department at Bangalore, her immediate Boss i.e. 1st defendant has 11 O.S.NO.5098/2013 unlawfully obtained the documents of suit property and colluding with plaintiff, created the Will which is pleaded by the plaintiff in the plaint?
6) Whether the 5th defendant proves that since her sister H.V.Asha was a spinster, during her life time, the plaintiff was never treated as her son and she died and as such, without executing any testamentary document and the defendants 2 to 5 being her legal heirs succeeded to the estate of Smt. H.V.Asha?
7) Whether the 5th defendant proves that defendants 2 to 4 have executed a relinquishment deed in respect of suit property in her favour and on its strength she had sold the suit property to the 6th defendant and put him in possession of the same?
8) Whether the 5th defendant proves that she has re-purchased the suit schedule property from 6th defendant and has been in lawful possession and enjoyment of the same as its absolute owner?
9) Whether the suit is barred by
limitation?
10) Whether the valuation of the suit is improper and payment of court fee is insufficient?
11) Whether the plaintiff is entitle for relief prayed in the suit?
12) What order or decree?
12 O.S.NO.5098/2013ADDITIONAL ISSUES:
1) Whether the 1st defendant proves that, he had married Smt.H.V.Asha in the year 1994 and their marriage was solemnized at Thirupathi in the presence of defendant No.2 to 5?
2) Whether the 1st defendant proves that, the defendant No.2 to 5 by furnishing false information to the competent authorities, obtained a fraudulent death certificate of Smt.H.V.Asha got entering her father's name in it though the death certificate was issued mentioning her husband name i.e., 1st defendant K.T.Srinivasan, in the death certificate?
10. To prove the case, plaintiff got examined himself as P.W.1 and got examined two witnesses as P.W.2 & 3 and got marked Ex.P-1 to P-51 documents. On behalf of defendants, defendant No.5 is examined herself as D.W.1 and got marked Ex.D-1 to D-16 documents.
11. Heard the arguments.
12. My findings on the above issues are:
Issue No.1 : Deleted Issue No.2 : In negative 13 O.S.NO.5098/2013 Issue No.3 : In negative Issue No.4 : In negative Issue No.5 : In affirmative Issue No.6 : Deleted Issue No.7 : In affirmative Issue No.8 : In affirmative Issue No.9 : In negative Issue No.10: In negative Issue No.11: In negative Addl.Issue-1 Deleted Addl.Issue-2 Deleted Issue No.12: As per final order, for the following :
REASONS
13. Issue No.2, 4 & 5: It is the case of the plaintiff that he was taking care of H.V.Asha in her old age ailments. Further, with that relation, she had executed the Will deed dt.9.9.2010. Further, the deceased was looking after the plaintiff as her son. According to defendant No.2 to 5, H.V.Asha alone was residing in the said house and she died as a spinster and the plaintiff was a stranger to the 14 O.S.NO.5098/2013 deceased. Plaintiff is none other than 1st defendant's elder sister's son. In page No.13 of the cross- examination of D.W.1 had deposed that she does not know when the deceased used to visit the suit house and she used to talk with plaintiff and she does not know that at that time, defendant No.1 was residing in the said house. It appears that it is an evasive answer of D.W.1. If plaintiff had not been residing in the said house, she (D.W.1) would have said that plaintiff was not residing in the suit house. It is the contention of learned counsel for the plaintiff that documents produced by the plaintiff are sufficient to prove the possession of the plaintiff over the suit property. According to plaintiff (P.W.1) as stated in para-11 of his evidence in chief that defendant No.2 to 6 by colluding with each other thrown him out of the suit property by creating some concocted documents with an intention to grab the suit property. Hence, admittedly, plaintiff was not in possession over the suit property on the date of suit.
14. Apart from that, plaintiff seeks a relief to quit, evict and handover the vacant possession of the suit property in favour of the plaintiff from the hands of defendant No.2 to 5. Ex.P-1 is the telephone bills 15 O.S.NO.5098/2013 dt.7.11.2005 and 7.11.2010. In the bill dt.7.11.2005, the name of plaintiff's father is shown as the owner of the telephone and the address of suit property is shown. In bill dt.7.11.2010, the address of the suit property is shown and it is shown that the plaintiff was the owner of the telephone. Ex.P-2 is the pass book commences from the year 2001 and the address of suit property is shown as residence of plaintiff. Similar type of entry is made in Ex.P-3 pass book issued by Canara Bank. Ex.P-3 passbook commences from the year 2008. In Ex.P-4 and 5 letters, it appears that the name of defendant No.1 was suffixed to the name of deceased. In Ex.P-6 tax paid receipt for the year 1.4.2000 to 30.9.2000, it is shown that the deceased had paid tax and she was residing in the suit house. Ex.P-8 is the statement of Canara Bank in which the name of plaintiff and deceased is shown as they are residents of suit property. In Ex.P-9 statement of Canara Bank, it is shown that plaintiff was residing in the suit house. Ex.P-10 is the Bank pass book. In Ex.P-11, 12 and 13 statements of account it is stated that plaintiff and H.V.Asha were holding joint account.
16 O.S.NO.5098/201315. Ex.P-14 is the passbook extract issued by Karnataka Bank stands in the name of plaintiff and deceased H.V.Asha, in which, the suit property is shown as their residential address. Ex.P-29 is telephone registration card installed in the suit property stands in the name of plaintiff's father. Ex.P-35 is the ration card dt.15.12.2001 stands in the name of plaintiff, which shows the suit house as the residential address of the plaintiff. Further, Ex.P- 38 telephone bill for the period from 1.7.2011 to 31.7.2011 stands in the name of plaintiff indicates the suit house as the residential house of the plaintiff. The above said documents and the oral evidence of P.W.1 is sufficient to hold that plaintiff was residing in the said house prior to the death of H.V.Asha. Apart from that, it is also suggested to P.W.2 as appears in page No.7 of the cross- examination that till the death of H.V.Asha, plaintiff was residing in the suit house along with her. Therefore, it could be inferred that there is no dispute that the plaintiff was residing in the suit house along with H.V.Asha till her death.
16. It is contended by the learned counsel for the defendant No.1 in the written argument filed that 17 O.S.NO.5098/2013 defendant No.1 had married H.V.Asha. To prove the said fact, he did not enter the witness box. Further, P.W.2 is none other than the elder brother of defendant No.1. He admits the suggestion in para No.5 of his (P.W.2's) cross-examination that defendant No.1's wife Smt.Vijaya was still alive. Further, it is admitted by P.W.2 in the cross- examination in page No.4 that defendant No.1 has two daughters and a son in the wedlock of Smt.Vijaya. Further, in Ex.D-1 to 4 service records relates to H.V.Asha, it is shown that she was a spinster. Further, Ex.P-24 is the copy of the letter submitted by defendant No.1 to the Commissioner, Municipal Corporation, Shimoga dt.22.2.2011 stating that he was the husband of deceased H.V.Asha and to issue death certificate accordingly. Ex.P-23 is the copy of the death certificate issued stating that defendant No.1 was the husband of deceased. The said fact has been objected by the brother of H.V.Asha and Ex.P-22 is the representation given by defendant No.1 to retain his name suffixed to H.V.Asha as her husband. Subsequently, proceedings took place before the City Municipal Council, Shimoga and it was ordered to suffix the name of father of H.V.Asha as late H.Vittal Bhat by 18 O.S.NO.5098/2013 substituting the name of defendant No.1 as her husband. Ex.D-12 is the copy of the said proceedings. Subsequently, death certificate was issued vide Ex.D-13 by mentioning as H.V.Asha was the daughter of late H.Vittal Bhat. Defendant No.1 did not question the said proceedings before any other authority and it has become final. This fact indicates that defendant No.1 indirectly to have some wrongful gain had attempted to suffix his name as husband of deceased H.V.Asha.
17. The next question is whether the deceased had executed the Will deed Ex.P-39 in accordance with law and she had an intention to bequeath the suit property in favour of the plaintiff. Ex.P-39 is an unregistered Will deed dt.9.9.2010. On perusal of Ex.P-39, it appears that in her 60 years of age, she had executed Will deed. She had no age old ailments at that time. It is contended by the learned counsel for the defendant No.2 to 5 that the Will deed has not been executed in accordance with Sec.63 of Indian Succession Act. In support of the contention, he relies the judgment reported in ILR 2008 KAR 2115 J.T.Surappa and another vs Sri Satchidha- nandendra Saraswathi Swamiji Public Charitable 19 O.S.NO.5098/2013 Trust & others. The burden is heavily casted on the propounder of the Will to prove the Will deed. Plaintiff (P.W.1) has filed affidavit in the form of his evidence in chief. He has reiterated the fact stated in the plaint in the affidavit filed. It is the case of defendant No.2 to 5 that defendant No.1 was stranger to the deceased, but in the cross- examination, she admits Ex.P-45 to 50 photos. In the photos, it appears exchange of garlands by deceased H.V.Asha and defendant No.1 and a contention was taken by defendant No.1 that he had married H.V.Asha. D.W.1 in the cross-examination admits that Ex.P-47 photo might have taken at Tirupathi and she identifies in the photo her sister H.V.Asha and K.T.Srinivasan.
18. Further, D.W.1 admits that the photo reflects in Ex.P-47 is of defendant No.1, Shobha K.Bandarkar, Krishnananda Bandarkar and plaintiff- Suresh, her mother Girijamma-Vittal Bhat and others. Ex.P-47(a) is its negative. Further, she admits that the said photo might have taken at Tirupathi. Further, she admits the exchange of garlands in between defendant No.1 and H.V.Asha in Ex.P-49 and 50 photos, Ex.P-49(a) and 50(a) are its negatives.
20 O.S.NO.5098/2013Therefore, it cannot be said that defendant No.1 is altogether stranger to the deceased. On the basis of the said photos, it could be inferred that there was some affair by defendant No.1 with the deceased. According to P.W.1, documents pertains to suit property was in the custody of defendant No.1 which was given to him by the deceased. Admittedly, defendant No.1 was higher officer of deceased wherein she was working. According to P.W.1 as asserted in para-11 of his evidence, Smt. H.V.Asha has executed Will deed with love and affection towards him when she was hale and healthy and in sound mind. It is not in dispute that plaintiff was the son of elder sister of defendant No.1. Hence, I feel in view of the above said affair, defendant No.1 allowed the plaintiff to stay in the suit house along with the deceased. Defendant No.1 was a Deputy Director in Town Planning and the deceased was a senior typist under him. Ex.P-39 Will deed alleged to have been executed while testator was in service. Even if it is taken that defendant No.1 had married the deceased during lifetime of 1st wife, it amounts to misconduct of defendant No.1 and the deceased. Hence, it is surprised in that juncture as to why and how, it was written in Ex.P-39 that defendant No.1 was the 21 O.S.NO.5098/2013 husband of the deceased. Therefore, it could be said that because of affair in between defendant No.1 and deceased, Ex.P-39 came into existence. Even if the marriage is proved, it would be a void marriage as provided u/s.11 of Hindu Marriage Act. Further, it comes to the mind of the Court as to why plaintiff was not at all made as nominee in the service register relates to the deceased. On perusal of Ex.D-1 to 4 service records relates to the deceased, in Ex.D-
2 in column No.17, it is shown that she wasunmarried. It appears that Ex.D-2 Form was submitted on 17.6.2006. Further in Ex.D-3 and 4 nomination submitted on 17.6.2006, the name of defendant No.5 is shown as nominee. Hence, defendant No.5 had drawn the death benefits relates to the deceased. Therefore, it still more strengthens that defendant No.1 had only an affair with the deceased and not more than that in any aspect.
19. It is to be mentioned here that deceased was an educated person and she was a senior typist. According to P.W.2, deceased was a steno in a government office. On perusal of Ex.D-1 particulars of the government servant submitted by the deceased before the government, it is mentioned that she had 22 O.S.NO.5098/2013 studied up to PUC and passed English typing and appeared for senior grade examination and in other records, it is mentioned that she was a senior typist. According to P.W.2 after execution of the document, deceased had kept the same in her custody. The propounder (P.W.1) of the Will says that after the death of the deceased, he traced the Will deed. It is not the case of the plaintiff that by accidentally, he had traced the Will deed. According to him, defendant No.2 to 6 had thrown him out from the suit property.
20. P.W.2 is the alleged attestor of the Will deed. He is none other than the brother of defendant No.1 and the relative of plaintiff. Defendant No.1 was Deputy Director in the office of Town Planning. In the cross-examination of P.W.2 in page No.7, it is stated that he does not know as to whether the Will deed was written or typed. According to him, he had attended the marriage of H.V.Asha with defendant No.1 and it was at Tirupathi. He admits that Smt.Vijaya was the wife of defendant No.1 and she was still alive on the date of marriage of H.V.Asha. P.W.3 is the notary. He admits in the cross- examination that a register would be supplied to him 23 O.S.NO.5098/2013 to enter the names, nature of documents and particulars of the person who had executed the documents. Further, he has been maintaining the said register. Further, serial number, date and page number mentioned in the register shall be stated in the document. Admittedly, the same has not been mentioned in Ex.P-39 Will deed. P.W.2 and 3 consistently stated that they have not read over the contents of document to be executed. It is the duty of a notary to enter about the execution of document in the register. Since the register has not been produced and the serial number with regard to entry made has not been stated in Ex.P-39, it cannot be said that notary has complied the mandatory duty casted on him. Further, P.W.2 is not an independent witness. Further, he says in the cross-examination that he does not remember the time he met H.V.Asha on 9.9.2010. Further, he says that he met her in M.S. Building and cannot say whether it was morning or evening. Further, he does not know at what time, the Will deed was executed.
21. P.W.3 is a responsible person. He says that he has not read over the document and he does not remember as to who had accompanied H.V.Asha 24 O.S.NO.5098/2013 other than her advocate at the time of executing the document. It all creates doubt and suspicion in the mind of the Court.
22. A contention is taken by defendant No.2 to 5 in the written statement that Will deed was a forged one and the alleged signature of Kumari H.V.Asha was a forged signature and she has not at all executed any Will deed. Further, the Will deed is a fabricated, concocted, created by 1st defendant in collusion with the plaintiff to knock of the suit property. When the signature is disputed, it is bounden duty of the propounder of the Will to get the signature tested through an hand writing expert. In support of the contention, counsel for defendant No.2 to 5 relies the judgment reported in AIR 2008 SC 1541 Thiruvengada Pillai vs. Navaneethammal & another. In the said judgment, in para No.15, Hon'ble Apex Court has observed that there is no doubt that Court can compare the disputed handwriting/signature/finger impression with the admitted one. Such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. Further, the comparison of the disputed signatures cannot be casual or by a 25 O.S.NO.5098/2013 mere glance. In the case in hand, the plaintiff did not make any effort to get the signature tested through an handwriting expert.
23. The other contention taken by the learned counsel for the plaintiff that plaintiff alone was looking after the testator. In support of the contention, counsel relies Ex.P-20 letter dt.18.8.1994 given by M/s.Seven Hills, Ex.P-27 and 27(a) and 9 receipts in Ex.P-28 issued by M/s.Seven Hills Holiday Resorts Ltd., The amount mentioned in the receipt was paid by the plaintiff. On closest scrutiny of those documents, nothing appears that the amount mentioned in the said document was paid by the plaintiff. Hence, there is no merit in the said contention. Accordingly, I answer issue No.2 and 4 in negative and issue No.5 in affirmative.
24. Issue No.3, 7 and 8: It is the contention of the learned counsel for the plaintiff that defendant No.6 under the guise of purchasing the suit property from 5th defendant has unlawfully dispossessed the plaintiff colluding with defendant No.2 to 4 from the suit property. According to P.W.1, he was residing in the suit property till 2007. Defendant No.6 was the 26 O.S.NO.5098/2013 Corporator of BBMP and his father was an Ex.MLA during the relevant period, by using his high influence, men and muscle power, defendant No.6 colluding with defendant No.2 to 5 thrown the plaintiff from the suit property. There is no doubt with regard to the ownership of the deceased over the suit property. Ex.P-18 is the copy of the application submitted by defendant No.5 to transfer khata in favour of her from the name of H.V.Asha and the same was submitted on 4.7.2011. Ex.P-19 is Uttara patra dt.7.7.2011 stands in the name of defendant No.5. Ex.D-32 is the lease cum sale deed executed by BDA in favour of deceased. Ex.P-33 is the copy of the sale deed dt. 24.5.2005 issued by BDA in favour of deceased. Ex.P-34 is the copy of katha dt. 27.1.1999 stands in the name of H.V.Asha. Ex.P-31 is the possession certificate issued by BDA in favour of H.V.Asha. Ex.P-31 to 34 were obtained under RTI Act. Ex.P-40 is the copy of release deed dt.2.7.2011 executed in favour of defendant No.5 by defendant No.2 to 4. Ex.P-41 is the copy of the Sale Deed dated 22.7.2011 executed by defendant No.5 in favour of defendant No.6. Ex.P-42 is the sale deed executed by defendant No.6 in favour of defendant No.5 dt.24.9.2011 pertains to suit property. Ex.P-43 is the 27 O.S.NO.5098/2013 copy of Suvarna khata dt.7.7.2011 stands in the name of defendant No.5. Since deceased was dead on 18.2.2011, all these documents were came into existence subsequent to her death. Hence, it has no much weight.
25. It is not in dispute that plaintiff had lodged a private complaint in PCR No.18248/2011 against defendant No.2 to 6 u/s.200 Cr.P.C., for the offence punishable u/s.420, 506 and 120(B) of IPC on the ground that defendants have fabricated documents. It is admitted by P.W.1 in the cross-examination that B-report was filed on the said complaint. Ex.D-14 is the certified copy of the B-report. Even though P.W.1 has produced the petition, no material has been produced to substantiate the same.
26. It is also to be mentioned here that plaintiff had filed P&Sc.No.218/2011 u/s.276 of Indian Succession Act on 3.8.2011 on the file of City Civil Court, Bangalore. Ex.P-44 is the certified copy of the order sheet relates to the said case. Initially, the said petition was filed against defendant No.1 herein only, later on, defendant No.2 to 5 herein at there instance came on record. Hence, it was withdrawn with a 28 O.S.NO.5098/2013 liberty to file suit. Further, it is not in dispute that a petition in P&Sc.No.29/2012 was also filed by the defendant No.2 to 5 herein u/s.372 of the Indian Succession Act for issuance of succession certificate on the file of Principal Civil Judge, Belgaum on 31.7.2012. Ex.P-51 is the certified copy of the said petition filed by defendant No.2 to 4 in P&Sc.29/2012. D.W.1 in page No.18 of the cross- examination admitted the suggestion that after the order been passed in the said petition, she had withdrawn the gratuity related to H.V.Asha. Hence, the said order has become final.
27. Apart from that, suits were also been filed by the parties herein. Plaintiff had filed a suit in O.S.No.5115/2011 in respect of suit property for the relief of permanent injunction to restrain the defendants from interfering the suit property against defendant No.5 herein and her husband. Ex.D-5 is the certified copy of the plaint. Ex.D-6 is the copy of the written statement filed in the said suit. Admittedly, the said suit was dismissed for non- prosecution. Ex.D-7 is the certified copy of the order sheet produced to substantiate the same. Further, it is not in dispute that defendant No.1 had filed a suit 29 O.S.NO.5098/2013 in O.S.No.5364/2011 pertains to suit property against defendant No.5 for the relief of permanent injunction to restrain her from interfering the suit property. Ex.D-9 is the certified copy of written statement filed in the said suit. Ex.D-10 is the certified copy of the memo filed by defendant No.1 herein for permission to withdraw the said suit as not pressed. Accordingly, plaintiff was permitted to withdraw the suit. Ex.D-11 is the certified copy of the order sheet. Since these suits were filed after the expiry of H.V.Asha, it has no much weight. A contention has been taken in the written statement filed by defendant No.5 in the said suits that during the lifetime of her sister H.V.Asha, she alone was residing in the suit property and after her death, she (defendant No.5) is in physical possession and enjoyment over the suit property. Further, on perusal of Ex.D-5 plaint, it appears that the suit was filed on 18.7.2011. H.V.Asha was expired on 18.2.2011. Hence, if really the plaintiff was in possession over the suit property on the date of suit, he could have continued the said suit. Further, since the plaintiff did not enter the witness box, the said suit was dismissed for non-prosecution. Hence, nothing is elicited in the cross-examination of D.W.1 30 O.S.NO.5098/2013 that plaintiff was dispossessed by defendant No.6 in collusion with defendant No.2 to 4. B-report filed by the police in PCR No.18248/11 itself indicates that a false complaint was filed by the plaintiff in Ex.P-15. Hence, plaintiff has failed to prove that he was unlawfully dispossessed from the suit property. Nothing is elicited in the cross-examination of P.W.1 to disbelieve the release deed been executed by defendant No.2 to 4 in favour of defendant No.5. Further, by virtue of the release deed, defendant No.5 had sold the suit property in favour of defendant No.6 and put him in possession. The sale deed vide Ex.P-41 dt.22.7.2011 indicates about the sale and defendant No.6 was in possession. Copy of the sale deed vide Ex.P-42 dt.24.9.2011 indicates that defendant No.6 executed sale deed pertains to suit property in favour of defendant No.5. Nothing is elicited from the mouth of D.W.1 to disbelieve these documents. Hence, I answer issue No.3 in negative, issue No.7 and 8 in affirmative.
28. Issue No.9 & 10: It is the case of the plaintiff that the cause of action arose on 18.2.2011. Even though a contention has been taken by the defendants that suit is barred by limitation, the same 31 O.S.NO.5098/2013 has not been established. H.V.Asha died on 18.2.2011. Thereafter only, the cause of action beings to file suit. Present suit was filed on 15.7.2013. Hence, the suit is in time.
29. The other contention taken by the defendant No.6 is that the court fee paid and the valuation made is not correct. On perusal of the valuation slip filed, it appears that the plaintiff has valued the market value of the suit property at Rs.35,09,800/- and paid court fee u/s.24(a) r/w.S.38 of Karnataka Court Fees & Suits Valuation Act of Rs.1,62,420/-. The relief sought is to declare that the plaintiff is the absolute owner by virtue of the Will dt.9.9.2010 and to evict and handover vacant possession of the suit property in favour of the plaintiff. Hence, the valuation under S.24(a) of Karnataka Court Fees & Suits Valuation Act is applicable. Further, since it is sought to declare release deed dt.2.7.2011 and Sale Deed dated 22.7.2011 and 24.9.2011 as null and void and does not bind the plaintiff, plaintiff had valued the suit u/s.38 of Karnataka Court Fees & Suits Valuation Act. In Ex.P-42 Sale Deed dated 24.9.2011 executed by defendant No.6 in favour of defendant No.5, the 32 O.S.NO.5098/2013 market value is shown at Rs.35,09,000/-. Defendant No.2 to 6 did not file any counter to the valuation slip furnished by the plaintiff. Further, it is not explained in the written statement as to how the calculation of court fee and the valuation made is not correct and what should have been the valuation with reference to the relief sought by the plaintiff. Only a defence is taken by the 6th defendant that the payment of court fee is insufficient. Apart from that, defendant No.6 did not enter the witness box to substantiate the same. Hence, the defendants have failed to prove that court fee paid and valuation made is not correct. Accordingly, I answer issue No.9 and 10 in negative.
30. Issue No.11: A contention is taken by defendant No.2 to 5 that the suit in O.S.No.5115/2011 filed by the plaintiff for the relief of permanent injunction came to be dismissed for non-prosecution on 30.8.2011. Hence, the present suit is hit by Order II Rule 2 of C.P.C. and the issues in the former suit and the present suit are substantially one and the same thereby, the suit is hit by principle of res-judicata. The former suit is for the relief of permanent injunction and the present 33 O.S.NO.5098/2013 suit is for the relief of declaration of ownership and possession and to set aside the release deed and sale deeds. Hence, it cannot be said that the issues in the former suit and the present suit are substantially one and the same. Hence, there is no merit in the contention that the suit is hit by principle of res- judicata. The cause of action in the former suit was in the month of 5th July 2011 when the defendants have illegally interfered with the possession of the plaintiff over the suit property. The cause of action in the present suit is that till 3rd week of July 2011, the plaintiff resided in the suit property and subsequently, he was thrown out of the suit property by defendant No.2 to 6 by colluding with each other by creating some concocted documents with an intention to grab the suit property. According to the plaintiff, since on the date of present suit, as he was in possession of the suit property, he was not supposed to file the suit for the relief of declaration. Further, nothing is stated in the plaint of the former suit about the release deed and the sale deeds mentioned in the present suit. Hence, it cannot be said that plaintiff was supposed to seek relief sought in the present suit in the former suit. Hence, there is no merit in the contention that the suit is hit by 34 O.S.NO.5098/2013 Order II Rule 2 of C.P.C. Since the parties are litigating with respect to immovable property claiming their title over the same, parties have to bear their own cost. Accordingly, issue No.11 is answered in negative.
31. Issue No.12: In view of the discussions made above and findings given on the aforesaid issues, I proceed to pass the following:
ORDER Suit is dismissed.
No order as to cost.
(Dictated to the Judgment Writer, computerized by her, corrected, signed and then pronounced by me in the open court on this the 28th day of September, 2018) (SHIVARAMA.K) XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 K.S.Suresh
P.W.2 K.T.Mohan Raju
P.W.3 Krishnamurthy R.T.
35 O.S.NO.5098/2013
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 Smt.Usha @ Aarti U.Deshpande LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P-1 Two telephone bills Ex.P-2 & 3 Bank passbooks Ex.P-4 & 5 Letters issued by Seven Hills Holiday Resorts Ltd., Ex.P-6 Challan cum receipt Ex.P-7 Counter claim Ex.P-8 Claimant master list Ex.P-9 Certified copy of transaction statement Ex.P-10 UTI Bank passbook Ex.P-11 Certified copy of client master Ex.P-12 Certified copy of account statement Ex.P-13 Statement of accounts issued by SBI Mutual fund Ex.P-14 Certified copy of Bank passbook Ex.P-15 Certified copy of complaint, list of witness and list of documents in P.C.R.No.18248/11 Ex.P-16 Certified copy of order sheet in P.C.R.No.18248/11 Ex.P-17 Certified copy of deposition in P.C.R.No.18248/11 Ex.P-18 Certified copies of three Suvarna kathas 36 O.S.NO.5098/2013 Ex.P-19 Certified copies of 3 uttara patra Ex.P-20 Letter given by M/s.Seven Hills Ex.P-21 Certified copy of Annexure 49A issued by Dept. of Treasuries Ex.P-22 Certified copy of letter written by 1st defendant Ex.P-23 Certified copy of death certificate of H.V.Asha Ex.P-24 Certified copy of letter of 1st defendant Ex.P-25 Certified copy of document issued by M/s.Shimoga Mid Town of Rotary Charity Foundation Ex.P-26 Certified copy of medical certificate Ex.P-27 & 28 Receipts for having paid amount on behalf of late H.V.Asha to M/s.Seven Hills Holiday Resorts Ltd., Ex.P-29 Telephone receipt Ex.P-30 Pass book Ex.P-31 Certified copy of possession certificate Ex.P-32 Certified copy of lease cum sale deed Ex.P-33 Certified copy of absolute sale deed Ex.P-34 Certified copy of khata certificate Ex.P-35 Original ration card Ex.P-36 Voter ID card of plaintiff Ex.P-37 Voter ID card of H.V.Asha Ex.P-38 Document of telephone bill Ex.P-39 Will executed by late H.V.Asha Ex.P-40 Certified copy of relinquish deed 37 O.S.NO.5098/2013 Ex.P-41 Certified copy of Sale Deed dated 22.7.2011 Ex.P-42 Certified copy of Sale Deed dated 24.9.2011 Ex.P-43 Certified copy of khata certificate Ex.P-44 Certified copy of order sheet in P&Sc.218/11 Ex.P-45 to 50 Photographs Ex.P-51 Petition in P&Sc.No.29/2012 LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D-1 Service record pertaining to H.V.Asha Ex.D-2 DCRG application Ex.D-3 Nomination document pertaining to the year 2006 Ex.D-4 Certified copy of document of nomination dt.12.5.2006 Ex.D-5 to 7 Certified copy of plaint, written statement and order sheet in O.S.No.5115/2011 Ex.D-8 to 11 Certified copy of plaint, written statement, order sheet and memo in O.S.No.5364/11 Ex.D-12 Proceedings initiated before the Commissioner, Corporation, Shimoga Ex.D-13 Death certificate issued describing late Asha as d/o. late H.Vittal Bhat Ex.D-14 B-report Ex.D-15 Application for leave encashment 38 O.S.NO.5098/2013 Ex.D-15(a) Signature identified by witness in Ex.D-15 Ex.D-16 Covering letter Ex.D-16(a) Signature identified by witness in Ex.D-16 XLIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU 39 O.S.NO.5098/2013 Since issue No.1, 6 and Addl. Issue No.1 & 2 are not relevant with reference to the relief sought and the same is covered in other issues framed, those issues are deleted.
Judgment pronounced in the open court (vide separate order) ORDER Suit is dismissed.
No order as to cost.
(SHIVARAMA.K) XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.40 O.S.NO.5098/2013