Bangalore District Court
Smt.Hanumamma W/O Bore Gowda vs Sri B.K.Ramaiah on 20 December, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 20th Day of December 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Judge,Bangalore City.
ORIGINAL SUIT NO.1721/2005
Plaintiffs:
1. Smt.Hanumamma W/o Bore Gowda, aged
about 64 years, R/o No.17, Bazaar Street,
Adugodi, Bangalore-30
2. Smt.Lakshmamma, W/o late G.Narasaiah,
aged about 62 years, R/o No.3, 1st Cross,
Deve Gowda Layout, Adugodi,
Bangalore.(since dead by L.Rs.)
2(a) Smt.Anusuya, W/o G.Suresh, D/o
late Lakshmamma, aged about 54 years,
R/o No.5, Anjanadri Layout,
Doddanagamangala, Hosa Road,
Bengaluru-560 100
2(b) Smt.Lakshmidevi N., W/o Nanjappa
R, D/o late Lakshmamma, aged about 51
years, R/o No.31/56, 3rd Main road,
Nanjappa Block, K.G.Nagar, Bengaluru-
560 019
2(c) Sri Nagesh N., S/o late Narasaiah,
S/o late Lakshmamma, aged about 48
years, R/o No.3, 1st Cross, Devegowda
Layout, Adugodi, Bengaluru-560 030
2(d) Smt.Nalini N., W/o L.Chandramouli,
D/o late lakshmamma, aged about 43
years, R/o No.63/1, 12th Main, 5th Cross,
2 O.S.No.1721/2005
Raghavendra Block, Sreenagar,
Bengaluru-560 050
3. Smt.B.K.Jayamma, W/o M.V.srinivasa,
aged about 56 years, R/o No.3006, 17th
Cross, II Main, BSK II stage, K.R.Road
Off,Bangalore-70
4. Smt.B.K.Chandramma
W/o Gangadharappa, aged about 48
years, R/o No.915, 4th Cross, III Stage, III
Phase, III Block, BSK, Bangalore-85
5. Smt. B.K.Savithri, W/o H.V.sridhar, aged
about 42 years, R/o No.54, 1st Cross, 80 ft
road, Bhuvaneshwari Nagar,
Kattariguppa, BSK III Stage, Bangalore-85
[by advocate Sri Shanmukappa]
V/s
Defendants:
1. Sri B.K.Ramaiah, S/o late Kempaiah, aged
about 59 years, R/o No.183, II Main,
Koramangala, 1st Block, Bangalore-560
034
2. Smt.N.Kalpana, W/o Sri Shivashankar,
aged about 48 years, No.4, Ground floor,
III Main, 5th Block, Rangappa Layout,
Ittamadu, BSK III Stage, Bangalore.
3. Smt.N.Shakunthala, W/o G.T.Srinivas,
D/o late Lakshmamma, C/o Sree
Sreenivasa Jewellers, No.39, Nagarthpet
Main road, Nagarthpet, Bengaluru-560
002
[D1 by advocate Sri D.D., D2 by advocate Sri
S.S.C and D3 placed exparte]
3 O.S.No.1721/2005
: 03/03/2005
Date of Institution of the suit
Partition and separate
Nature of suit :
possession
Date of commencement of
: 16/08/2011
Evidence
Date on which the judgment
: 20/12/2018
is pronounced
Duration taken for disposal Years Month Days
:
13 09 17
JUDGMENT
The plaintiffs have filed this suit for partition and separate possession.
2. The case of the plaintiffs, as per the plaint averments is as follows:-
Plaintiffs No.2 to 5 and defendant No.1 are the daughters and son of late Kempaiah and they constitute Joint Hindu Family. Late Kempaiah, during his life time, had settled all the properties in favour of his daughters and son and everyone has taken their respective share and enjoying the same.
It is further submitted by the plaintiffs that Late Kempaiah had executed a Will on 4 O.S.No.1721/2005 22.2.1984 bequeathing the property bearing house list No.88, Lakkasandra Dakhale, Bangalore South Taluk, now comes under corporation division No.36, Chinnayanapalya (Wilson Garden), Corporation No.2, Maruti Nilaya and another property bearing No.45/12, wrongly typed as 45/19, situated at Parappana Agrahara, Begur hobli, Bangalore South Taluk, measuring 4 acre, which is suit schedule A property, in favour of his wife Smt.Lingamma .
It is further submitted by the plaintiffs that after death of Late Kempaiah, his wife Smt.Lingamma succeeded to the above said properties and enjoying the same as an absolute owner. Smt.Lingamma has settled the house property in favour of plaintiff No.3 and plaintiff No.5, under registered Partition Deed dt.2.2.1989 and retained suit schedule A property for herself.
It is further submitted by the plaintiffs that Smt.Lingamma executed a Will on 5 O.S.No.1721/2005 16.1.1998 bequeathing suit schedule A property in favour of plaintiffs and defendants equally. According to the said Will, all the parties to the suit are entitled to an equal share in suit schedule A property.
It is further submitted by the plaintiffs that Smt.Lingamma died on 9.5.1998 leaving behind the plaintiffs and defendants herein to succeed to the estate left over by her and as per her desire expressed in the above said Will dt.16.1.1998, the plaintiffs and defendants are entitled to an equal share in suit schedule A property.
It is further submitted by the plaintiffs that after death of Smt.Lingamma, the plaintiffs requested the defendant to divide suit schedule A property equally and allot their respective shares as per the desire of their mother expressed in the Will dt.16.1.1998. But instead of doing so, the defendant without the consent and knowledge of the plaintiffs, made an 6 O.S.No.1721/2005 application to the Revenue Department and got the katha transferred in his name by furnishing false information that except himself, there are no other legal representatives to claim the suit schedule A property. Based on the said false affidavit and the application filed by the defendant, the Revenue authorities have effected the mutation in his name vide IHC No.9/86-87. Now by virtue of the said entries, RTC has also been written in the name of the defendant. Taking advantage of said entry, the defendant is making hectic attempt to dispose of suit schedule A property so as to deprive the legitimate equal share of the plaintiffs in the said property.
It is further submitted by the plaintiffs that Late Kempaiah, during his life time, had acquired another property bearing No.45/18, situated at Parappana Agrahara, Begur hobli, Bangalore South Taluk, measuring 4 acre, which is suit schedule B property, under a 7 O.S.No.1721/2005 registered Sale Deed dt.8.2.1985 and he was enjoying the same during his life time. After his death, the plaintiffs and defendants succeeded to the same and are in joint possession and enjoyment of the same. The plaintiffs and defendants have got equal right over suit schedule B property also.
It is further submitted by the plaintiffs that after having knowledge of the act of the defendant in getting the revenue entries changed in his name in respect of above said properties, they contacted the Revenue authorities and requested for inclusion of their names in the revenue records. The Revenue authorities informed that the names of plaintiffs cannot be included in the revenue records, as the mutation has already been effected in favour of the defendant.
The plaintiffs further submit that they have got legitimate share in the suit schedule A property as per the desire expressed by their 8 O.S.No.1721/2005 mother in her Will dt.16.1.1998. Since the defendant who is brother of the plaintiffs has refused to effect any partition in terms of the said Will, the plaintiffs are constrained to file this suit for partition and separate possession of their shares in suit schedule A property in terms of the Will of their mother dt.16.1.1998 and equal share in suit schedule B property.
The cause of action for this suit arose during the month of January, 2005 when the plaintiffs demanded partition in the schedule properties. Since the parties to the suit are residing and the suit schedule properties are situated within the jurisdiction of this Court, this Court has got territorial jurisdiction to dispose of this case. Hence the plaintiffs prayed this Court to decree the suit, as prayed for, in the prayer column of the plaint.
3. On the other hand, the defendant No.1 filed written statement, admitting the relationship 9 O.S.No.1721/2005 between him with the plaintiffs. But he denied all the allegations made in the plaint as false and untrue.
Further submitted at para 15 of the written statement that since the alleged Will dt.22.2.1984 said to has been executed by Late Kempaiah bequeathing the written statement schedule property i.e, the house property and plaint A schedule property in favour of his wife Smt.Lingamma, was not as per his desire, he got the same cancelled and wrote his last Will dt.10.3.1985, bequeathing the written statement schedule property in favor of his wife Smt.Lingamma and the plaint A & B schedule properties in favour of this defendant.
Further submitted that after death of Late Kempaiah, Smt.Lingamma who acquired the written statement schedule property under the last Will of Late Kempaiah dt.10.3.1985, created a Partition deed dt.2.2.1989 in collusion with plaintiffs 3 and 5 thereby settling the said property in their favour with an 10 O.S.No.1721/2005 intention to deprive the legitimate share of the defendant in the said property.
Further submitted that in view of cancellation of the earlier Will d.22.2.1984 and execution of Final Will dt.10.3.1985 by Late Kempaiah, Smt.Lingamma did not acquire any right over suit schedule A property and she had no right to execute alleged will dt.16.1.1998 and the said Will does not have any legal sanctity in the eye of law. The alleged Will and the Partition deed are created by Smt.Lingamma, at the instance of M.V.Srinivas, who is the husband of plaintiff No.3 in collusion with the plaintiffs, with an intention to harass the defendant.
Further defendant No.1 submits that the plaintiff No.5 on the basis of alleged Partition deed dt.2.2.1989 executed a Sale Deed dt.26.6.2002 in respect of a portion of the written statement schedule property in favour of Mr.G.Arun Kumar for Rs.14,50,000/-, but 11 O.S.No.1721/2005 the sale consideration was shown as Rs.5 lakhs in the Sale Deed. But the alleged Partition deed dt.2.2.1989 and the alleged Sale Deed dt.26.2.2002 are not binding on the defendant.
In para 15(c)(i) of the Written Statement, the defendant No.1 submits that his father late Kempaiah performed the marriages of plaintiffs 1 to 4 during his life time. At the time of marriage the house bearing No.17, Bazar street, Audugodi,Bangalore which was purchased by late Kempaiah in the name of his wife Smt.Lingamma, was given to Plaintiff No.1 and she is residing in the said property with her husband and children.
In para 15(c)(ii), it is stated by defendant No.1 that Plaintiff No.2 was constructing the house bearing No.3, I Cross, Audugodi Bangalore-30 during the year 1979 and at that time, defendant No.1 and his father late Kempaiah supported her by extending financial assistance.
12 O.S.No.1721/2005
In para 15(c)(iii), the defendant No.1 stated that the third daughter of late Kempaiah by name Kempamma last her husband just one year after her marriage and returned to the house of defendant along with her daughter Kalpana. Said Kempamma was given a site at RPC layout by late Kempaiah. She died on 11.10.1992 leaving behind her lonely daughter Kalpana as his legal heir. The plaintiffs have not chosen to make her party to the suit and therefore the suit is bad for non-joinder of necessary parties.
In para 15(c)(iv) it is stated by the defendant No.1 that the 4th daughter who is plaintiff No.3 apart from availing financial assistance from the defendant and his father while constructing a house at Hanumanthanagar, has also got a portion of the Written Statement schedule property under the alleged Partition deed dt.2.2.1989. 13 O.S.No.1721/2005
In para 15(c)(v) it is stated by the defendant No.1 that the plaintiff No.4 who is 5th daughter of late Kempaiah was provided with a site at Koramangala by the defendant and his father.
In para 15(c)(vi) it is stated by the defendant No.1 that plaintiff No.5 who is the 6th and last daughter of late Kempaiah apart from availing financial assistance from the defendant and his father to purchase jewelry, has also got a portion of the Written Statement schedule property under the alleged Partition deed dt.2.2.1989 and she sold it for Rs.14,50,000/-. Her marriage was celebrated from the money kept in the name of their mother Smt.Lingamma by late Kempaiah. All the plaintiffs and daughter of deceased Kempamma, who is sister of defendant No.1 are living comfortably with their respective families.
In para 15(d) of the Written Statement, defendant No.1 submits that his father late 14 O.S.No.1721/2005 Kempaiah was living with him till his death and he was looking after his father with love and affection. He helped his father in acquiring the suit schedule properties. Therefore his father late Kempaiah by canceling his previous Will dt.22.2.1984 executed his last Will dt.10.3.1985 bequeathing the house property i.e., Written Statement schedule property in favour of his wife Smt.Lingamma and Plaint 'A' and 'B' schedule properties in favour of this defendant.
In para 15(e) of the Written Statemment, defendant No.1 further stated that upon the death of his father, he became the absolute owner continued to be in possession and enjoyment of the suit schedule properties. He has developed the suit schedule properties and made them as garden land by investing a huge money by raising loans and by working hard. The plaintiffs were never in possession of any portion of suit schedule property. The plaintiffs 15 O.S.No.1721/2005 cannot main the suit paying a fixed Court Fee of Rs.200/-. On these grounds, the defendant No.1 requested the Court dismiss the suit filed by the plaintiff.
4. Defendant No.2 filed independent Written Statement denying the averments made at para 1 to 12 of the plaint.
Further contended that since the alleged Will dt.22.2.1984 said to has been executed by father of defendant No.1 late Kempaiah bequeathing the house property and Plaint A schedule property in favour of his wife Late Smt.Lingamma was not as per his desire, late Kempaiah got the same cancelled and wrote his last will dt.10.3.1985, bequeathing the plaint A & B schedule properties in favour of defendant No.1.
Further defendant No.2 stated that after the death of late Kempaiah, under the last Will of late Kempaiah dt.10.3.1985, the defendant 16 O.S.No.1721/2005 No.1 became the absolute owner of plaint 'A' & 'B' schedule properties. Smt.Lingamma in collusion with plaintiffs 3 and 5, without giving share to the mother of defendant No.2, settled the said house property in their favour with an intention to deprive the legitimate share of mother of defendant No.2 in the house property. In view of cancellation of the Will dt.22.2.1984 and execution of Final Will dt.10.3.1985 by late Kempaiah, Smt.Lingamma did not acquire any right to the plaint 'A' schedule property and she had no right to execute the alleged Will dt.16.1.1998 and the said Will does not have any legal sanctity in the eye of law. The said Will is created by her at the instance of husband of plaintiff No.3 in collusion with the plaintiffs with an intention to harass the defendant No.2.
It is further stated by defendant No.2 at para 15(b) that the plaintiff No.5 on the basis of an alleged Partition deed dt.2.2.1989 created 17 O.S.No.1721/2005 Sale Deed dt.26.6.2002 in respect of portion of house property in favour of Mr.G.Arun Kumar for consideration of Rs.14,50,000/-, but the sale consideration is shown as Rs.5 lakhs in the Sale Deed.
Further it is stated by defendant No.2 at para 15(c) that all the family members of late Kempaiah got the equal right and legitimate share in respect of house property but the plaintiffs, willfully not included the house property in the suit, but they are illegally claiming their right over the suit schedule properties even though they have no legal right over the same. Hence the 2nd defendant requested the Court to dismiss the suit filed by the plaintiffs with costs.
5. On the basis of the averments made in the plaint and the written statement filed by defendants, my predecessor has framed the Issues 1 to 7 on 20/1/2009, as follows :-
18 O.S.No.1721/2005
1. Whether plaintiffs prove that their father late Sri Kempaiah had bequeathed suit schedule 'A' property in favour of their mother late Smt.Lingamma by executing a Will deed dt.22.2.1984?
2. Whether plaintiffs prove that their mother late Smt.Lingamma had bequeathed suit schedule 'A' property in their favour and in favour of defendant by executing a Will deed dt.16.1.1998?
3. Whether defendant proves that their father late Sri Kempaiah had cancelled his Will Deed dt.22.2.1984 and executed another Will Deed dt.10.3.85 and bequeathed suit schedule 'A' & 'B' properties in his favour?
4. Whether defendant proves that the suit is bad for non-joinder of necessary parties?
5. Whether the valuation of the suit made by the plaintiffs for the purpose of payment of Court Fee is proper and the Court Fee paid is proper and sufficient?
6. Whether the plaintiffs are entitled to the reliefs as sought for?
7. What decree or Order?
6. In this case, the plaintiff No.5 herself adduced her oral evidence as PW1 and in further chief examination of PW1, the documents produced by her are marked as Ex.P1 to P15. In support of 19 O.S.No.1721/2005 plaintiffs' case, the witness for the alleged Will said to has been executed by Smt.Lingamma dt.16.1.1998 is examined as PW2 and the said document is marked as Ex.P16. One attesting witness for the Will dt.22.2.1984 is examined as PW3 and the said Will is marked as Ex.P17. One attesting witness for alleged Partition deed dt.2.2.1989, adduced his oral evidence as PW4 and alleged Partition Deed dt.2.2.1989 is marked as Ex.P18. The Finger print expert is examined as PW5 and he adduced his oral evidence with regard to the report submitted by him marked as Ex.P19 in respect of comparison of LTM of Smt.Lingamma on alleged Ex.P1 and also Ex.D3. PW6 is handwriting expert and he adduced his oral evidence on the report submitted by him marked as Ex.P22 with regard to comparison of admitted signature of late Kempaiah on Ex.D2, Ex.P17 and disputed signature on Ex.D105 and closed by the side of plaintiff. On the other hand, the defendant No.1 adduced his oral evidence as DW1 by way of filing his sworn affidavit 20 O.S.No.1721/2005 and in further chief examination of DW1, the documents produced by him are marked as Ex.D1 to D104. In support of defendants' case one attesting witness for alleged Will Ex.D105 and another alleged will Ex.D3, is examined as DW2 and in further chief examination of DW2 the Will is marked as Ex.D105. Another attesting witness for alleged Will dt.10.3.1985 marked as Ex.D105 said to has been executed by late Kempaiah, is examined as DW3. One attesting witness to Ex.D105, the Will is examined as DW4. The defendant No.2 herself adduced her oral evidence as DW5 and no documents are marked in further chief examination of DW5 and closed by the side of defendants.
7. Heard oral arguments and perused the written arguments submitted by both side. Then the case posted for Judgment.
8. My findings on the Issues framed are as follows:-
Issue No.1-In the negative Issue No.2-In the negative 21 O.S.No.1721/2005 Issue No.3-In the affirmative Issue No.4-In the affirmative Issue No.5-In the negative Issue No.6-In the negative Issue No.7-As per final order for the following reasons:-
REASONS Issue Nos.1 and 3 :
9. I have taken up these two Issues together for discussion, since they are interlinked with each other in order to avoid repetition of facts and evidence and the burden of proving Issue No.1 lies on the plaintiffs and burden of proving Issue No.3 lies on the defendants.
10. Before giving reasons for the above issues, it is just and proper to know the admitted facts in this case. In this case the main propositor late Kempaiah had five daughters and one son i.e., plaintiffs and defendant No.1. During pendency of this suit, Plaintiff No.2 has dead and her legal representatives P2(a) to (d) are brought on record. There is no controversy regarding the relationship 22 O.S.No.1721/2005 between the plaintiffs and defendants 1 and 2. Even in the Written Statement filed by defendant No.1 at para 3 he admitted his relationship with the plaintiffs. So also defendant No.2 in the Written Statement at para 3 admitted her relationship with plaintiffs, defendant No.1 and their mother Smt.Lingamma.
11. But here it is specific case of the plaintiffs that their father late Kempaiah had executed a Will Deed dt.22.2.1984 bequeathing the property bearing house list No.88, Lakkasandra Dakhale, Bangalore South Taluk, now comes under corporation division No.36, Chinnayanapalya (Wilson Garden), Corporation No.2, Maruti Nilaya and another property bearing No.45/12, wrongly typed as 45/19, situated at Parappana Agrahara, Begur hobli, Bangalore South Taluk, measuring 4 acre, which is suit schedule A property, in favour of his wife Smt.Lingamma.
23 O.S.No.1721/2005
12. In order to prove Issue No.1, plaintiff No.5 adduced her oral evidence by way filing her sworn affidavit considered as PW1 and in further chief examination of PW1, the documents Ex.P1 to P17 are marked.
13. Here in the Written Statement filed by defendant No.1 at para 15, he took contention that since the alleged Will dt.22.2.1984 said to has been executed by Late Kempaiah bequeathing the house property and plaint A schedule property in favour of his wife Smt.Lingamma, was not as per his desire, he got the same cancelled and wrote his last Will dt.10.3.1985, bequeathing the house property in favor of his wife Smt.Lingamma and the plaint A & B schedule properties in favour of defendant No.1. Defendant No.2 also took the same contention as taken by defendant No.1 at para 15 of the Written Statement.
14. Here in order to prove the genuity and validity of the Will Deed dt.22.2.1984, the Court has 24 O.S.No.1721/2005 to take into consideration whether the said Will Deed dt.22.2.1984 was outcome of voluntary and free own mind of the testator and whether the testator was having knowledge to execute the said Will. Further whether the testator was in the sound state of mind and hale and healthy at the time of executing the Will and whether the propounder who relies on the Will proves that said Will is free from suspicious circumstances.
15. In this case the plaintiffs have to prove that the Will Deed dt.22.2.1984 as per Ex.P17 was outcome spontaneously and voluntarily by late Kempaiah out of his own intention and free Will. This fact is to be known by scrutinizing the oral evidence and documentary evidence by the side of the plaintiff .
16. In the cross-examination of PW1 at page 8, she categorically denied the suggestions suggested by the counsel for defendant No.1 that due to pressure, late Kempaiah executed Will Deed 25 O.S.No.1721/2005 dt.22.2.1984 as per Ex.P17. The plaintiffs got examined one attesting witness of Will Deed dt.22.2.1984 as per Ex.P17, as PW3. On perusing the chief examination of PW3, he stated that M.V.Srinivasa who is husband of plaintiff No.3 is his friend, he came to his office at 1 p.m. and told that he has to put his signature as attesting witness for the Will executed by his uncle late Kempaiah and therefore PW3 accompanied said M.V.Srinivasa and M.V.Srinivasa himself readover the contents of Ex.p17 in front of PW3 and then he put a signature on Ex.P17 and then late Kempaiah put his signature in presence of PW3 and another witness B.V.Chalapathi. PW3 identified his signature on Ex.P17 at Ex.P17(a) and identified signature of late Kempaiah at Ex.P17(b) to (e). Here looking to the cross-examination of PW3 goes to show that he has not at all put his signature in front of late Kempaiah nor before Sub Registrar Office while executing Will Deed dt.22.2.1984 as per Ex.P17. Because Ex.P17 is the document registered before the Sub Registrar. In 26 O.S.No.1721/2005 the cross-examination of PW3, he deposed that he does not know the relationship between M.V.Srinivasa and plaintiff No.3 though he had participated in the marriage held between M.V.Srinivasa and plaintiff No.3 and at that time he saw late Kempaiah was present. This goes to show that PW3 was not at all present while putting his signature on Ex.P17 in front of late Kempaiah. Further in the cross-examination of PW3, goes to show that on 22.2.1984, M.V.Srinivasa came to his office and requested him to attest the Will and it was about 1 p.m. when M.V.Srinivasa came to his office, then M.V.Srinivasa and himself accompanied to the house of late Kempaiah and at about 1.15 p.m. both M.V.Srinivasa and PW3 reached the house of late Kempaiah. But PW3 failed to depose who were other persons present when himself and M.V.Srinivasa reached the house of late Kempaiah. Further in the cross-examination of PW3 at page 5, he deposed that late Kempaiah executed the Will Deed dt.22.2.1984 as per Ex.P17 in presence of him and another 27 O.S.No.1721/2005 witness B.V.Chalapathi in between the time 1.15 p.m. to 1.30 p.m. But here looking to Ex.P17, the time of execution is mentioned at about 4 p.m. Further it is pertinent to note about execution of Will Deed dt.22.2.1984 as per Ex.P17 by late Kempaiah by perusing the evidence of PW3. PW3 deposed that when he went to the house of late Kempaiah already Will has been prepared and PW3 does not know who had prepared the said Will and he also not readover the contents of Will before he put signature on Ex.P17. Even PW3 adduced his oral evidence to the extent that he does not read over the contents of the Will before putting signature on it. Even he does not know who has written the said Will. Further in the cross-examination of PW3 at page 5 he deposed that he has not at all asked late Kempaiah regarding which property he is going to execute the Will. Further at page 6 PW3 deposed that he had not been in the Sub Registrar's office on the date of execution of Ex.P17. Even PW3 is well known to M.V.Srinivasa who is husband of plaintiff No.3, he 28 O.S.No.1721/2005 had no knowledge about who are the legal representatives of late Kempaiah. This goes to show that this witness is well known to M.V.Srinivasa, but he does not know the contents of Ex.P17 and PW3 also put his signature on Ex.P17 in the house of late Kempaiah and not before the Sub Registrar office. Under these circumstances how can the oral evidence of PW3 would help the plaintiff to prove that late Kempaiah has executed Ex.P17 out of his own free mind, as contended by the plaintiff.
17. In the Written Statement filed defendants 1 and 2 and also in the oral evidence of DWs.1 and 5, they specifically took contention that late Kempaiah had cancelled his Will Deed dt.22.2.1984 as per Ex.P17, but executed last unregistered Will dt.10.3.1985, bequeathing the house property in favor of his wife Smt.Lingamma and the plaint A & B schedule properties in favour of defendant No.1 as per ExD105.
29 O.S.No.1721/2005
18. In the additional sworn affidavit filed by PW1 dt.16.8.2011, at para 2, she stated that her father late Kempaiah was not healthy and poor vision in the year 1985 and in para 3 of the additional sworn affidavit, PW3 stated that the evidence of defendant No.1 and witnesses examined on behalf of him with regard to alleged Will dt.10.3.1985 which is marked Ex.D105 is false. At para 4 of the same sworn affidavit, Pw3 contended that the signature on Ex.D105 is not that of late Kempaiah and denied execution of unregistered Will which is marked as Ex.D105.
19. So here in order to prove whether actually late Kempaiah got cancelled the earlier Will Deed dt.22.2.1984 as per Ex.P17 and then subsequently executed last unregistered Will dt.10.3.1985 as per Ex.D105, at this juncture, it is just and proper to know the oral evidence by the side of defendants 1 and 2.
30 O.S.No.1721/2005
20. Here the defendant No.1 adduced his oral evidence as DW1 by way of filing his sworn affidavit and in further chief examination of DW1, the documents produced by him are marked as Ex.D1 to D105. In the cross examination of DW1, it goes to show that he joined service in the year 1971, which fact is admitted by PW1 in her cross-examination. Late Kempaiah retired during that period when defendant No.1 was in service. In his Written Statement, defendant No.1 took specific contention that he also contributed money for purchasing schedule B property. Schedule B property was purchased by late Kempaiah as per Ex.D2, the Sale Deed dt.31.1.1985. So here late Kempaiah died in the year 1986 i.e., one year prior to purchase of schedule B property, which goes to show that defendant No.1 also contributed money for purchasing schedule B property in the name of late Kempaiah as per Ex.D2. DW1 at page 13 of his cross-examination, denied the suggestions suggested by the counsel for the plaintiffs that late Kempaiah has not executed the 31 O.S.No.1721/2005 unregistered Will dt.10.3.1985 as per Ex.D105 . It is also outcome from the cross-examination of DW1 that Smt.Lingamma who is mother of plaintiffs and defendant No.1 handed over unregistered Will dt.10.3.1985 as per Ex.D105 executed by late Kempaiah to defendant No.1.
21. In order to prove the genuity and validity of unregistered Will dt.10.3.1985 as per Ex.D105 executed by late Kempaiah, one attesting witness is examined as DW2. DW2 is also scribe of Ex.D105. He identified his signature on Ex.D105 at Ex.D105(a) and also identified signature of late Kempaiah marked at Ex.D105(b) and signature of attesting witness Anand and Krishnamurthy at Ex.D105(c) and Ex.D105(b). So from the cross-examination of DW2, it goes to show that he is well known to the family of late Kempaiah and late Kempaiah. DW2 deposed that late Kempaiah is not related to him and he came in contact with late Kempaiah when he had purchased the suit schedule property. Further late Kempaiah was good friend with the father of DW2 32 O.S.No.1721/2005 since 40 years. DW2 deposed in his evidence that defendant No.1 also contributed for purchasing schedule B property. In the cross examination of DW2, it goes to show that the defendant No.1 was not present at the time of writing the contents of Ex.D105. He further deposed that on 10.3.1985 he came to Bengaluru from Santemaranalli by bus and reached the house of late Kempaiah at 11 a.m. and at that time another witness Krishnamurthy was also present and said Krishnamurthy is also not related to late Kempaiah. So late Kempaiah himself expressed before DW2 and DW3 with regard to execution of unregistered Will dt.10.3.1985 as per Ex.D105. As per direction of late Kempaiah, DW2 wrote contents of Ex.D105 in Kannada by his own handwriting. DW2 also deposed that first late Kempaiah put his signature and then DW2 himself put his signature and thereafter Anand and Krishnamurthy put their signatures on Ex.D105 as attesting witnesses. DW2 denied the suggestions suggested by counsel for the 33 O.S.No.1721/2005 plaintiffs that signature found on Ex.D105 at Ex.D105(b) is not the signature of late Kempaiah.
22. Here another witness Krishnamurthy adduced his oral evidence by way of filing his sworn affidavit as DW3. He identified his signature on Ex.D105 at Ex.D105(d) and also identified signature of late Kempaiah on Ex.D105 at Ex.D105(b) and identified signatures of DW2 and DW4 at Ex.D105(a) and Ex.D105(c). There are no contradictions as to prove that late Kempaiah was healthy at the time of execution of unregistered Will dt.10.3.1985 as per Ex.D105. In the cross examination of DW3, he denied the suggestion suggested by the counsel for the plaintiffs that late Kempaiah was not in a position to sign earlier to his death. DW3 identified signature of late Kempaiah on Ex.P17 marked at Ex.P17(b) to (e) and also identified the admitted signature of late Kempaiah on Ex.D2 which is the Sale Deed executed in the name of late Kempaiah marked at Ex.D2(a). The counsel for the plaintiffs tried to extract admissions by suggesting to DW3 that signature on 34 O.S.No.1721/2005 Ex.P17 i.e., Ex.P17(b) to Ex.P17(e) are not identical with the signature found on Ex.D105 belongs to late Kempaiah marked at Ex.D105(e). DW3 voluntarily stated that due to old age some difference may found in the signature of late Kempaiah on Ex.P17 and also Ex.D105(b). Further In the cross examination of DW2, at page 6 he deposed that late Kempaiah himself asked him to come to his house. This goes to show that the fact of execution of unregistered Will dt.10.3.1985 as per Ex.D105 is not known to DW2 and DW4 before they came to the house of late Kempaiah. In the cross-examination of DW3 at page 7, he deposed that late Kempaiah has told about the fact of cancellation of Will Deed dt.22.2.1984 as per Ex.P17 while executing unregistered Will dt.10.3.1985 as per Ex.D105. This goes to show that Will Deed dt.22.2.1984 as per Ex.P17 was not came into existence as per the intention and desire of late Kempaiah.
23. Here looking to the contents of Ex.P17, late Kempaiah was decided not to give any share to his 35 O.S.No.1721/2005 son defendant No.1 in the year 1984 when Ex.P17 was executed. So also his daughters and unmarried daughter B.K.Saviri who is plaintiff No.5 in this case living with him. Under these circumstances, late Kempaiah even thought of marriage of plaintiff No.5 while executing Will Deed dt.22.2.1984 as per Ex.P17. This goes to show that Ex.P17 is not voluntarily outcome by late Kempaiah out of his own free mind. Therefore, as per the evidence of DWs.2 and 3, goes to show that late Kempaiah decided to execute unregistered Will dt.10.3.1985 as per Ex.D105 by bequeathing house property in the name of his wife and 'A' & 'B' schedule properties in the name of defendant No.1, by canceling the earlier Will Deed dt.22.2.1984 as per Ex.P17.
24. Now another attesting witness DW4 adduced his oral evidence by filing sworn affidavit. He also identified his signature on Ex.D105 at Ex.D105(c). He also identified signature of late Kempaiah on Ex.D105 at Ex.D105(b). DW4 identified signature of DW2 and 3 already marked at 36 O.S.No.1721/2005 Ex.D105(a) and (d). So in the cross-examination of DW4 also there are no contradictions to suspect that there are surrounding circumstances existed while executing unregistered Will dt.10.3.1985 as per Ex.D105 by late Kempaiah.
25. In the cross examination of DW4, it goes to show that DW2 is not known to him. However he knows DW3 who is having estate situated near Kanakapura road. But from the oral evidence of DW4, it discloses that he know defendant No.1 since 35 years. Defendant No.1 is not related to DW4. In the cross examination of DW4, it goes to show that late Kempaiah is well known to him, because he used to accompany with defendant No.1 to the house of late Kempaiah. Further DW4 also deposed that plaintiffs 1 to 3 are elder and plaintiffs 4 and 5 are younger sisters of defendant No.1. DW4 deposed that he went to the house of late Kempaiah on 10.3.1985 at 11 a.m. By that time DWs.2 and 3 were already present in the house of late Kempaiah and contents of Ex.D105 started to write by DW2 after he reached 37 O.S.No.1721/2005 the house of late Kempaiah. Late Kempaiah himself informed about writing of Will to DW2 and DW2 also read over the contents of Ex.D105 in presence of late Kempaiah, DW3 and DW4. DW4 also deposed that Ramakrishnegowda who is scribe of Ex.D105 also put signature on Ex.D105 in his presence and then himself and DW3 also put signatures as attesting witness on Ex.D105. All the process of contents of Ex.D105 putting signature by DWs.2 to 4 and late Kempaiah was completed at about 1 p.m. Here in the cross examination of DW4, it goes to show that the defendant was not present at the time of executing Ex.D105 by late Kempaiah.
26. Here defendant No.1 who is the propounder of unregistered Will dt.10.3.1985 proved that Ex.D105 is genuine and valid document. Moreover defendant No.1 who is propounder of unregistered Will dt.10.3.1985 as per Ex.D105 has to prove the unregistered Will dt.10.3.1985 as per Ex.D105 u/S 63 of the Indian Succession Act, 1925 and also u/S 68 of the Indian Evidence Act. From the 38 O.S.No.1721/2005 oral evidence of DWs.2 to 4, goes to show that at the time of execution of unregistered Will dt.10.3.1985 as per Ex.D105, he was in sound state of mind and hale and healthy. Because here late Kempaiah died on 23.12.1986 prior to one year of execution unregistered Will dt.10.3.1985 as per Ex.D105. Therefore from the cross-examination of PW1 and DW1, it goes to show that late Kempaiah has not died by suffering from any chronic disease. Further it was the burden on the part of plaintiffs to prove that late Kempaiah was not hale and healthy while executing Ex.D105, by producing any relevant document as to establish the fact that he was not in sound state of mind and not healthy. Further in this case DWs.2 to 4 have also identified the signature of late Kempaiah which is marked as Ex.D105(b) on Ex.D105 and further all the attesting witnesses DW2 to 4 put their signatures on Ex.D105 in the presence of late Kempaiah. Therefore in this case late Kempaiah determined to execute the unregistered Will dt.10.3.1985 as per Ex.D105 in the name of his only 39 O.S.No.1721/2005 son defendant No.1 and to his wife by canceling his earlier Will Deed dt.22.2.1984 as per Ex.P17. Because defendant No.1 also assisted and contributed money for purchasing schedule B property as per Ex.D2, at the time defendant No.1 was in service. Hence it could be presume that late Kempaiah has taken financial assistance from his son defendant No.1 for purchasing schedule B property as per Ex.D2. Therefore late Kempaiah might have changed his mind for canceling earlier Will Deed dt.22.2.1984 as per Ex.P17 which was not executed as per his desire and subsequently he executed unregistered Will dt.10.3.1985 as per Ex.D105 by canceling earlier Will Deed dt.22.2.1984 as per Ex.P17 .
27. Here the plaintiffs filed I.A.No.16 u/S 45 of the Evidence Act r/w Rule 26-A of C.P.C. which was allowed as per order dt.11.12.2012. Accordingly the disputed signature of late Kempaiah on Ex.D105 and disputed LTM of Smt.Lingamma on Ex.D3 and admitted signature of late Kempaiah on Ex.D2 and 40 O.S.No.1721/2005 admitted LTM of Smt.Lingamma on Ex.P1 sent to FSL, Madivala for obtaining expert's opinion. Accordingly PW5, who is the Finger Print Expert submitted his report on disputed LTM of Smt.Lingamma on Ex.D3 marked as Ex.D3(a) and admitted LTM of Smt.Lingamma on Ex.P1 marked as Ex.p1(a). Because as per the contention of defendants, Smt.Lingamma executed consent letter by putting her LTM dt.27.1.1987. Ex.P1 is the Partition deed dt.2.2.1989 executed by Smt.Lingamma bequeathing house property in favour of plaintiffs 3 and 5. Here the report submitted by PW5 is marked as Ex.P19 and questioned LTM of Smt.Lingamma on Ex.D3 was enlarged by PW5 as per Ex.P20 and admitted LTM of Smt.Lingamma on Ex.P1 is enlarged as per Ex.P21. But here on perusing the cross-examination of PW5, he deposed that he has not identified the features in questioned LTM as per Ex.P20 due to disputed LTM of Smt.Lingamma which is marked as Ex.P20 is not properly visible. Therefore the oral evidence of PW5 41 O.S.No.1721/2005 is not at all helpful to prove that admitted LTM of Ex.P21 is actually belongs to Smt.Lingamma when PW5 has not identified and marked the features of the ridges and complete features of the disputed LTM of Smt.Lingamma on Ex.D3 as per Ex.P20. Therefore from the oral evidence of PW5, it cannot come to the conclusion that LTM of Smt.Lingamma on Ex.P1 belongs to her.
28. Here the handwriting expert who examined admitted signature of late Kempaiah on Ex.P17 at Ex.P17(b) to (e) adduced his oral evidence as PW6. He selected two signature of late Kempaiah on Ex.P17 and has given name as S1 and S2. So also PW6 took signature of late Kempaiah on Ex.D105 marked at Ex.D105(b). The opinion given by PW6 marked as Ex.P22. But here on perusing the cross-examination of PW6, he failed to observe and mention the skill of signatures on Ex.S1 and S2 and also Ex.D105(b) are good or poor. In the cross- examination of PW6, he admitted that he has not mentioned the skill of disputed and admitted 42 O.S.No.1721/2005 signatures of late Kempaiah in his opinion on ExP.22, because mere statement that the skill is not same which is claimed to be mentioned in the report is not meeting up to the scientific standards of the Handwriting Examination report. Further in the cross-examination of PW6, he clearly admitted that he failed to mention the important handwriting characteristics including the movement of writing. So here on Ex.P17(b), PW6 has partially reported in his report by selecting the signature of late Kempaiah on Ex.P17. Therefore there is natural variation as observed in the disputed signature which the expert has failed to notice and wrongly reported in his report marked as Ex.P22. PW6 utterly failed to depose whether signature on Ex.D105 and Ex.P17 made by a person who is literate or illiterate. Therefore theory on which PW6 relied is totally contrary to the report submitted by him. The cross-examination of PW6, goes to show that he has not mentioned the basic character of writing of a person like speed and rhythm. About 43 O.S.No.1721/2005 these factors the explanation given by PW6 in his cross-examination is different compared to his opinion given as per Ex.P22. The cross-examination of PW6 goes to show that he intentionally denied to comment on the characteristics of illiterate signatures. PW6 claims to have read the material in Albert Osborn's book related to illiterate signatory but has completely failed to understand which is the root cause of misleading conclusion. Further PW6 claims that unequal pen pressure is the characteristic of a forged signature, but the pen pressure cannot equal in a genuine signature and the same is called as graduated pen pressure. So here PW6 by applying his own theory has erred and deviated from the standard practice of handwriting examination profession. In the cross-examination of PW6 he deposed that the questioned signatures were put by ball point pen, but he has not mentioned the same in his report Ex.P22. He failed to mention in his report regarding several striking similarity between the disputed and admitted signatures. 44 O.S.No.1721/2005 Therefore PW6 only reported with regard to dissimilarity in the disputed signatures without illustrating the actual character of the admitted signature of late Kempaiah on Ex.P16. Therefore it goes to show that PW6 has given a bias opinion. Moreover PW6 has denied the suggestions suggested by counsel for the defendants that poor skill and tremors are usually found in old age which is against the facts of the hand writing. Therefore PW6 failed to understand the natural variations in these signatures and applying the customized and personal theories without applying the technical standards submitted his report which is against his own profession. Therefore mere relying on the oral evidence of PW5 and 6, it is very difficult to arrive to the conclusion that the LTM found on Ex.D3 does not belongs to Smt.Lingamma and disputed signature, as contended by the plaintiffs on Ex.D105 at Ex.D105(b) not belongs to late Kempaiah. The theory of investigation did by PW5 and PW6 is not a conclusive evidence which is only an opinion,not 45 O.S.No.1721/2005 substantive evidence unless there is a corroborative evidence available on record.
29. Here looking to the oral evidence of Pw3, goes to show that he is well known to M.V.Srinivasa who is husband of plaintiff No.3. Late Kempaiah is not at all well known to PW3. Further PW3 has not at all put his signature on Ex.P17 in presence of late Kempaiah and he admitted in the cross-examination at page 6 that he has not at all gone to the Sub registrar office while executing Will Deed dt.22.2.1984 as per Ex.P17.
30. Further in this case looking to Ex.P17, PW6 has not chosen for comparing the signature of late Kempaiah found on Ex.P17 at Ex.P17(e) with disputed signature found on Ex.D105 which is marked Ex.D105(e). Therefore there is no corroborative evidence to prove that late Kempaiah has executed Will Deed dt.22.2.1984 as per Ex.P17 out of his own free mind and voluntarily. Therefore late Kempaiah again determined to execute unregistered Will dt.10.3.1985 as per Ex.D105 by 46 O.S.No.1721/2005 allotting proportional share to his son, defendant No.1 and his wife Smt.Lingamma. Moreover in this case the plaintiffs utterly failed to prove that late Kempaiah had bequeathed house property and A schedule property to Smt.Lingamma voluntarily out of his own free mind. Hence I answered Issue No.1 in the negative.
31. Further the defendants proved by relying on oral evidence of DW2 to DW5 and documentary evidence that late Kempaiah had cancelled his earlier Will Deed dt.22.2.1984 as per Ex.P17 and subsequently executed another unregistered Will dt.10.3.1985 as per Ex.D105 by bequeathing A and B schedule properties in favour of defendant No.1. Hence I answered Issue No.3 in the affirmative.
ISSUE NO.2
32. In the pleadings of the plaint, the crux of the matter on which the plaintiffs are relied is that late Kempaiah executed Will Deed dt.22.2.1984 as per Ex.P17 bequeathing the property bearing house list No.88, Lakkasandra Dakhale, Bangalore South 47 O.S.No.1721/2005 Taluk, now comes under corporation division No.36, Chinnayanapalya (Wilson Garden), Corporation No.2, Maruti Nilaya and suit schedule A property bearing No.45/12, situated at Parappana Agrahara, Begur hobli, Bangalore South Taluk, measuring 4 acre in favour of his wife Smt.Lingamma and after death of Late Kempaiah, Smt.Lingamma has settled the house property in favour of plaintiff No.3 and plaintiff No.5, under registered Partition Deed dt.2.2.1989 and retained suit schedule A property for herself and Smt.Lingamma again executed a Will on 16.1.1998 bequeathing suit schedule A property in favour of plaintiffs and defendants equally. So here admittedly partition has taken place as per Ex.P1 in the year 1989. Then what was the necessity for Smt.Lingamma to execute registered Will Deed dt.16.1.1998 as per Ex.P16 bequeathing A schedule property equally to the plaintiffs and defendants when the plaintiffs and defendants being natural heirs shall succeeded to schedule properties as joint family properties of both parties after death of 48 O.S.No.1721/2005 Smt.Lingamma. This creates doubt about whether Smt.Lingamma actually executed a Will on 16.1.1998 bequeathing suit schedule A property in favour of plaintiffs and defendants equally. PW2 is the attesting witness for registered Will Deed dt.16.1.1998 as per Ex.P16. In his chief examination, PW2 has deposed that one M.V.Srinivasa who is husband of plaintiff No.3 and friend of him, called upon him to go to the house of Smt.Lingamma on 16.1.1998 and said M.V.Srinivasa readover the contents of Ex.P16 to Smt.Lingamma and she put her LTM on Ex.P16 in presence of PW2 and M.V.Srinivasa. Said M.V.Srinivasa also attested the Will Ex.P16. At para 2 of his sworn affidavit, Pw2 stated that after 3 or 4 days of aforesaid event, M.V.Srinivasa called PW2 and narrated that Smt.Lingamma wanted the Will to be registered and hence he should go the Sub Registrar's office at Koramangala. Accordingly Smt.Lingamma, M.V.Srinivasa and PW2 went to Sub Registrar's office at Koramangala at 10.30a.m. and 49 O.S.No.1721/2005 Smt.Lingamma admitted the execution of Will and in token of the Will executed, she affixed her LTM on Will Ex.P16 and then PW2 put her signature on Ex.P16. PW2 identified his signature on Ex.P16 marked at Ex.P16(a). However the LTM cannot be marked as exhibit. But witness can only depose that he saw the Smt.Lingamma putting her LTM in his presence. However in this case alleged LTM of Smt.Lingamma on Ex.P16 marked as Ex.P16(b) to Ex.P16(i). Perusing the cross-examination of PW2, he deposed that on the request of M.V.Srinivasa over phone, he came to his house and at that time Smt.Lingamma was also present in his house and all the daughters of Smt.Lingamma were also present and at that time it was 12 to 1p.m. But on perusing the chief examination of PW2, he stated that himself, Smt.Lingamma and M.V.Srinivasa together went to Sub Registrar's office at 10.30a.m. Such type of evidence of PW2 creates a doubt in the mind of the Court that Ex.P16 alleged to has been executed by Smt.Lingamma in a suspicious manner. Further in 50 O.S.No.1721/2005 the cross-examination of PW2 at page 4 dt.15.9.2015 he deposed that when he went to the house, by that time M.V.Srinivasa has already prepared Will and M.V.Srinivasa read over contents of Will before Smt.Lingamma, but he has not personally readover the contents of the Will. Here in the cross- examination of PW2, he deposed that Smt.Lingamma affixed her LTM on the Will at about 1 p.m. But PW2 failed to depose whether Smt.Lingamma was literate or illiterate. Such being the evidence from the mouth of PW2 in his cross-examination, it creates a doubt whether actually Smt.Lingamma put her LTM on Ex.P16 in presence of PW2. In the cross examination of PW2, it goes to show that Smt.Lingamma is no more and he does not know when she died. Here being good friend of M.V.Srinivasa, who is none other than the son-in-law of Smt.Lingamma and husband of plaintiff No.3, could not possible for PW2 to know family affairs of Smt.Lingamma.
33. In this case PW5 who is finger print expert, selected only LTM of Smt.Lingamma on 51 O.S.No.1721/2005 Ex.P1 and Ex.D3 which are the registered Partition Deed and consent letter given by Smt.Lingamma in favour of defendant No.1 for get entered his name in respect of A & B schedule properties. But why PW5 did not select alleged to be admitted LTM of Smt.Lingamma on Ex.P16 which are marked as Ex.P16(b) to Ex.P16(g). If PW5 had been selected the LTM of Smt.Lingamma on Ex.P16 then it could be possible for PW5 to arrive for better conclusion as to whether LTM found on Ex.D3 compared to LTM found on Ex.P16 are one and the same and belongs to Smt.Lingamma or not. Therefore the entire cross- examination of PW2 goes to show that it is only M.V.Srinivasa, who is husband of plaintiff No.3, has taken a prominent role in executing the Registered Will Deed dt.16.1.1998 as per Ex.P16. Here Ex.P16 came into existence in the year 1998 only to counterblast the unregistered Will dt.10.3.1985 as per Ex.D105 and consent letter marked as Ex.D3. Therefore there was no necessity for Smt.Lingamma to execute registered Will Deed dt.16.1.1998 as per 52 O.S.No.1721/2005 Ex.P16 when she has already settled the house property in favour of plaintiff No.3 and plaintiff No.5, under registered Partition Deed dt.2.2.1989 and retained suit schedule A property for herself. Here even after death of Smt.Lingamma, the plaintiffs and defendant No.1 who are natural heirs of late Kempaiah and Smt.Susheelamma would have succeeded to the suit A and B schedule properties and house property. What were the reasons for which Smt.Lingamma executed registered Will Deed dt.16.1.1998 as per Ex.P16 is not forthcoming from the mouth of witnesses PWs.1 to 4.
34. The next important circumstances to know is whether actually the registered Will Deed dt.16.1.1998 as per Ex.P16 has been acted upon since 1998 till filing of this suit. Ex.P16 has not seen the light of the day for considerable period from the death of testator i.e., Smt.Lingamma who died on 9.5.1988. There are no documents produced by PW1 in order to prove that as per Ex.P16, the names of plaintiffs and defendants got entered in the property 53 O.S.No.1721/2005 documents. Therefore there are suspicious circumstances surrounded around Ex.P16 and onus is on the propounder to explain and remove those suspicious circumstances to the satisfaction of the Court before accepting the Will i.e., Ex.P16 as genuine document. In the cross-examination of PW1 dt.29.1.2018, she admitted that katha was not standing in the name of Smt.Lingamma in respect of a schedule property. This goes to show that Ex.P16 has not been acted upon. However in the cross- examination of Pw1, she admitted that as per the Partition deed which is marked as Ex.P1, katha is changed and PW1 also admitted that she sold out her portion of the property allotted through Partition deed, Ex.P1.
35. Here A, B, C schedule has been classified and A schedule property bearing No.45/19, situated at Parappana Agrahara, Begur hobli, Bangalore South Taluk, measuring 4 acre has allotted to Smt.Lingamma and the house property bearing corporation No.36-55, Chinnayanapalya (Wilson 54 O.S.No.1721/2005 Garden), Corporation No.2, Maruti Nilaya, in which 'B' schedule property i.e., eastern portion has been allotted to plaintiff No.3 and 'C' schedule property i.e., western portion has been allotted to plaintiff No.3. But no share has been allotted to plaintiffs 2,4 and also the legal representative of another daughter Kempamma. So here when the partition took place as per Ex.P1, what was the necessity again to file this partition suit for the plaintiffs, because in this case as per Ex.D105 and Ex.D3, katha has been effected in the name of defendant No.1 in respect of A & B schedule properties since from 1986 to 2005- 06 which are marked as Ex.D20 to D61. As per Ex.D17, the name of Defendant No.1 got entered in mutation register. As per ExP18 and P19, which are Index of Land and Record of Right, the name of defendant got entered in respect of A and B schedule properties. Ex.P69 to 78 are tax paid receipts stood in the name of defendant No.1. In the cross- examination of PW1, she categorically admitted that there are no documents produced as to prove that 55 O.S.No.1721/2005 plaintiffs and defendant No.1 are in joint possession and enjoyment of the suit schedule properties. In page 11 of the cross-examination of Pw1, she has not admitted that defendant No.1 has developed the suit schedule property by constructing a house. PW1 deposed that her father late Kempaiah has constructed house in the property, but she cannot able to speak in which portion of the suit schedule property, late Kempaiah has constructed the house. Further PW1 deposed that when she got married, she has not at all seen the suit schedule properties. She also failed to depose whether various trees have been grown in the suit schedule property. This goes to show that Ex.P16 was not acted upon soonafter execution of registered Will Deed dt.16.1.1998 as per Ex.P16, and no katha or mutation entered in respect of A schedule property equally in the name of plaintiffs and defendant No.1 as per the contents of Ex.P16. In this case PWs.1 and 2 failed to satisfy the legal requirement which are necessary to prove the genuity and validity of registered Will Deed 56 O.S.No.1721/2005 dt.16.1.1998 as per Ex.P16. If actually Smt.Lingamma intended to distribute equally the share in A schedule property in favour of plaintiffs and defendant No.1, then why Smt.Lingamma has not distributed share in B schedule property which is also property purchased by late Kempaiah with the assistance and contribution by defendant No.1 in the year 1985 as per Ex.D2. The improbable and unnatural distribution of properties as mentioned in the registered Will Deed dt.16.1.1998 as per Ex.P16, goes to show that said registered Will Deed dt.16.1.1998 as per Ex.P16 is not genuine. Therefore prominent role played by M.V.Srinivasa who is husband of plaintiff No.3 and son-in-law of Smt.Lingamma is apparently shown looking to the cross-examination of PW2 who is attesting witness to registered Will Deed dt.16.1.1998 as per Ex.P16. The dominant role was played by M.V.Srinivasa who has influenced for origin of registered Will Deed dt.16.1.1998 as per Ex.P16.
57 O.S.No.1721/2005
36. In this case it is very difficult to arrive to the conclusion that the LTM found on Ex.P16 is actually belongs to Smt.Lingamma, because PW5, the finger print expert has not chosen the admitted LTM of Ex.P16, as per the contention of the plaintiff, for comparing with the disputed LTM found on Ex.D3. Therefore in this case, it goes to show that at the instance of M.V.Srinivasa who is husband of plaintiff No.3, he got prepared the contents of Ex.P16 which is not within the knowledge of Smt.Lingamma. Moreover it is not proved where actually Smt.Lingamma put her LTM on Ex.P16 either in the house of M.V.Srinivasa or before sub registrar office, Koramangala. Mere registration of Ex.P16 is not itself suffice to come for the conclusion that Will is valid unless proved by cogent and credible evidence which must be corroborated by scrutinizing evidence of attesting witness, PW2. But the chief examination of PW2 and evidence in the cross-examination of PW2 is quite contrary to hold that registered Will Deed dt.16.1.1998 as per Ex.P16 is genuine 58 O.S.No.1721/2005 document executed by Smt.Lingamma. Further the propounder of registered Will Deed dt.16.1.1998 as per Ex.P16 has to fulfill the requirement as per Sec.63 of the Indian Succession Act.
37. In this case there is no trustworthy evidence in the oral evidence of PWs.1 and 2 as to know that Smt.Lingamma was hale and healthy while executing Ex.P16 , though in the cross- examination of PW1, she deposed that Smt.Lingamma was hale and healthy at the time of executing Ex.P16. But the version of PW2, goes to show that he put his signature in the house of M.V.Srinivasa and not before the Sub Registrar's office, Koramangala. Moreover it is also not outcome from the mouth of PW2 as to say who has brought Smt.Lingamma to the house of M.V.Srinivasa whose house is situated at Banashankari. This itself goes to show that there is no any credential and confidential evidence in order to prove that Smt.Lingamma was in sound state of mind and hale and healthy while executing Ex.P16. So, therefore the reported decision 59 O.S.No.1721/2005 of Hon'ble High Court of Karnataka relied on by the counsel for the plaintiff in AIR 1959 SC 443 in the case between Venkatachala Iyengar V/s Thimmajamma and others, would not at all applicable. Because in this case, the plaintiffs utterly failed to prove that Ex.P16 was executed by Smt.Lingamma out of his own free mind and voluntarily. So also the counsel for the plaintiff relied on the reported decision of the Hon'ble High Court of Karnataka reported in ILR 2008 KAR 2115 in the case between Sri J.T.Surappa and Another Vs.Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, wherein the Hon'ble High Court of Karnataka at para 24 observed and commented that the Court has to treat a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps "PANCHAPADI" stating that (1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?; (2) 60 O.S.No.1721/2005 Whether the natural heirs have been disinherited? If so, what is the reason?; (3) Whether the testator was in a sound state of mind at the time of executing the Will?; (4) Whether any suspicious circumstances exist surrounding the execution of Will? And (5) Whether the Will has been executed in accordance with Section 63 of the Indian Evidence Act, 1925, read with Section 68 of the Evidence Act? Here the observation made by the Hon'ble High Court of Karnataka rightly applicable to the case on hand, because in this case, the propounder failed to prove that PW2 who is attesting witness for Ex.P16 put his signature in front of Smt.Lingamma who is said to be testator of Ex.P16. Further looking to Ex.P16, Smt.Lingamma has executed registered Will Deed dt.16.1.1998 as per Ex.P16 only with regard to 'A' schedule property, which would be shared by plaintiffs and defendant No.1 equally. But Smt.Lingamma has not included 'B' schedule property in Ex.P16 and there are no reasons forthcoming by the side of plaintiffs as to why 61 O.S.No.1721/2005 Smt.Lingamma has left out 'B' schedule property to be included in the alleged registered Will Deed dt.16.1.1998 as per Ex.P16. Further perusing the cross-examination of PWs.1 and 2 goes to show that there were suspicious circumstances existed while executing Ex.P16 by Smt.Lingamma. Moreover PW5 who is finger print expert has not selected or chosen the LTM of Smt.Lingamma on Ex.P16 while comparing the LTM on Ex.P1 and Ex.D3. Thus the plaintiffs utterly failed to prove by producing relevant and reliable documents as to show whether Smt.Lingamma was in a sound state of mind and hale and healthy at the time of execution of registered Will Deed dt.16.1.1998 as per Ex.P16. Hence in this case looking to the oral evidence of PWs.1 and 2 and observation made by the Hon'ble High Court of Karnataka, goes to show that there is no trustworthy and effectual evidence available on record in order to prove that Ex.P16 is genuine and valid document. Hence the plaintiffs utterly failed to 62 O.S.No.1721/2005 prove Issue No.2. Accordingly Issue No.2 is answered in the Negative.
ISSUE NO.4:
38. The defendant No.1 in his Written Statement took contention that the suit filed by the plaintiffs is bad for non-joinder of necessary party. In the pleadings of the plaint, it is pleaded that Smt.Lingamma obtained house property and 'A' schedule property as per Will Deed dt.22.2.1984 as per Ex.P17 and after death of late Kempaiah again, Smt.Lingamma has settled the house property in favour of plaintiff No.3-B.K.Jayamma and plaintiff No.5-B.K.Savitri by executing registered Partition Deed dt.2.2.1989 which is marked as Ex.P1. On Ex.P1, plaintiffs 3 and 5 also put their signatures and one Beerlingegowda and Chandrashekar put their signatures as witnesses. But here admittedly in the house property bearing Corporation division No.36, Chinnayanapalya (Wilson Garden), Corporation No.2, Maruti Nilaya, half share is allotted to plaintiff No.3 and Plaintiff No.5, and 'A' 63 O.S.No.1721/2005 schedule property i.e., property bearing No.45/19, situated at Parappana Agrahara, Begur hobli, Bangalore South Taluk, measuring 4 acre has been allotted to Smt.Lingamma. On perusing the Written Statement filed by defendant No.1, he took contention that house bearing No.17, Bazar street, Audugodi, Bangalore which was purchased by late Kempaiah in the name of his wife Smt.Lingamma, was given to Plaintiff No.1 and she is residing in the said property with her husband and children. The plaintiff No.5 who is the 6th and last daughter of late Kempaiah sold out her portion of the property which was allotted to her under Partition deed dt.2.2.1989 for Rs.14,50,000/-. In the cross-examination of Pw1, she admitted that plaintiff No.5 sold out her portion of the house property in favour of G.Arun Kumar as per Ex.P1. The said purchaser has not been made as party by the plaintiff in this case and hence the suit is bad for non-joinder of necessary party. Moreover the plaintiffs have not chosen to implead legal representatives of late Kempamma who is also one of 64 O.S.No.1721/2005 the daughter of late Kempaiah and Smt.Lingamma and sister of plaintiffs and defendant No.1, which is admitted in the cross-examination of PW1. Said Kempamma is having a daughter by name Kalapana who is defendant No.2. Therefore I answered Issue No.4 in the Affirmative.
ISSUE NO.5
39. In the Written Statement, the defendants 1 and 2 took specific contention that the valuation made by the plaintiff on the relief claimed is improper and Court Fee paid by the plaintiff is insufficient. Looking the cross-examination of PW1, at page 7 dt.29.1.2018, she admitted that she has not produced any document as to show that plaintiffs and defendants were in joint possession and enjoyment of the suit schedule properties. Further at page 7, she admitted that she is not having any document to show that the plaintiffs are in possession of the suit schedule properties. Here the address given in the causetitle of the plaint, goes to show that the plaintiffs are not in possession and 65 O.S.No.1721/2005 enjoyment of the suit schedule properties. This goes to show that Court Fee paid by the plaintiffs u/S 35(2) of the Karnataka Court Fee & Suit Valuation Act is insufficient and the valuation made is improper. Therefore the plaintiff ought to have paid Court Fee u/S 35(1) of the Karnataka Court Fee & Suit Valuation Act, since the plaintiffs failed to prove that they are in joint possession and enjoyment of the suit schedule property along with defendants. In the cross-examination of PW1, it goes to show that the katha and mutation extract stood in the name of defendant No.1 since 1985-86 till filing of this suit. So therefore the plaintiffs are not at all in possession and enjoyment of A & B schedule properties for more than 12 years. Hence the plaintiffs ought to have paid Court Fee u/S 35(2) of the Karnataka Court Fee & Suit Valuation Act. Hence I answered this Issue in the Negative.
ISSUE NO.6:
40. In this case the plaintiffs relying on the oral evidence of PWs.1 to 4 utterly failed to prove the 66 O.S.No.1721/2005 partition held in respect of house property as per Ex.P1 during the life time of Smt.Lingamma. So also plaintiffs utterly failed to prove that Smt.Lingamma again executed registered Will Deed dt.16.1.1998 as per Ex.P16. The plaintiffs also utterly failed to prove unregistered Will dt.10.3.1985 as per Ex.D105 bequeathing house property in favour of his wife Smt.Lingamma and also bequeathing 'A' & 'B schedule properties in favour of his son defendant No.1 is created, concocted and by playing fraud.
Further the contradictions in the cross-examination of attesting witness PW2 for Ex.P16 goes to show that Smt.Lingamma has not at all executed Ex.P16 which is a created and concocted document at the instance of husband of plaintiff No.3 by name M.V.Srinivasa. The plaintiffs also utterly failed to prove that late Kempaiah has executed Will Deed dt.22.2.1984 as per Ex.P17 voluntarily while in a sound state of mind and hale and healthy. The contradictions in the cross-examination of PW3 at page 4 and 5 itself goes to show that late Kempaiah 67 O.S.No.1721/2005 has not at all executed Ex.P17 as per his desire or intention. Further perusing the cross-examination of PW4, the contradictions at page 4 and 5 itself goes to show that Smt.Lingamma has not at all executed registered Partition Deed as per Ex.P1. Moreover the plaintiffs have not at all clarified why Smt.Lingamma got partitioned the house property only between her two daughters i.e., plaintiff No.3 and plaintiff No.5 leaving without allotting share to her remaining daughters Plaintiff No.1, deceased plaintiff No.2 and plaintiff No.4. Further in this case on perusing the cross-examination of PW1, she has already sold out her portion of house property allotted as per Ex.P1 to third person. So this goes to show that plaintiff No.5(PW1) has sold out her portion of the house property allotted to her share under registered Partition Deed as per Ex.P1. But in this case plaintiffs have not impleaded the purchaser of the share of PW1. Therefore the suit filed by the plaintiffs is bad for non-joinder of necessary parties. Further in the cross-examination of PW1 68 O.S.No.1721/2005 dt.21.9.2018 at page 7, she admitted that one house property stood in the name of late Kempaiah. Further PW1 also admitted that said house property not included in the plaint schedule. Therefore the suit filed by the plaintiffs is also bad for non- inclusion of house stood in the name of late Kempaiah. Further in the cross-examination of PW1, she admitted that there are no any relevant documents as to show that all the plaintiffs and defendant No.1 are in joint possession and enjoyment of the suit schedule properties. PW1 also utterly failed to prove, relying on the oral evidence of PW5 who examined the admitted LTM of Smt.Lingamma on Ex.P1 comparing with the disputed LTM on Ex.D3 and failed to arrive for conclusive opinion to prove that LTM of Smt.Lingamma found on Ex.D3 is not belongs to Smt.Lingamma. Further PW1 also utterly failed to prove relying on the oral evidence of PW6 who is hand writing expert who examined admitted signature of late Kempaiah on Ex.P17 by comparing 69 O.S.No.1721/2005 with the disputed signature of late Kempaiah on Ex.D105. But the evidence of PW6 in his cross- examination, goes to show that he has not at all adopted the standard methods with guidelines which necessarily requires as to come for the opinion that there is a difference and variation in between the admitted signature of late Kempaiah on Ex.P17 and disputed signature of late Kempaiah on Ex.D105. Further plaintiffs utterly failed to prove that as on the date of filing of this suit, the suit schedule properties are joint family properties of them and defendant No.1.
41. On the other hand, defendant No.1 relying on the oral evidence of DW2 who is attesting witness and scribe of Ex.D105 and Ex.D3, and DW3 who is also attesting witness for Ex.D105 and DW4 who is also one of the attesting witnesses for Ex.D105, proved that Ex.D105 is the genuine and valid Will executed by late Kempaiah in the year dt.10.3.1985. Further the defendants proved that late Kempaiah has not executed Will Deed dt.22.2.1984 as per 70 O.S.No.1721/2005 Ex.P17 voluntarily and out of his own free mind and will. The defendants also proved that late Kempaiah cancelled the previous Will Deed dt.22.2.1984 as per Ex.P17 and subsequently wrote another unregistered Will dt.10.3.1985 as per Ex.D105 bequeathing house property to his wife Smt.Lingamma and also A & B schedule properties in favour of defendant No.1. Further in this case the counsel for DW1 relied on Ex.P79 which is settlement deed dt.23.3.1977 executed by Smt.Lingamma to her own daughter Plaintiff No.1 in respect of property No.8 situated at Bazar road, Audugodi and panchayat khata D.No.204/205 measuring East to West 23 feet and North to South 100 feet. But here Plaintiff No.1 has not at all entered into witness box with regard to establish the real fact of Ex.D79. Even PW1 has not disclosed regarding the settlement deed as per Ex.D79 executed by Smt.Lingamma in favour of Plaintiff No.1. This goes to show that late Kempaiah and Smt.Lingamma have already given properties to their daughters plaintiffs, and the late Kempaiah has 71 O.S.No.1721/2005 executed subsequent unregistered Will dt.10.3.1985 as per Ex.D105. Further in this case the defendant No.1 produced Ex.D15 and 16 which are the RTC extracts stood in the name of defendant No.1 and Ex.D17 is the Mutation Extract bearing No.M.R.9/86-8. Ex.P18 is the Index of Land and Ex.P19 is the R of R extract in respect of A and B schedule properties of the plaint. Ex.D20 to 61 are the RTC extracts stood in the name of Ramaiah from 1985-86 till 2005-06. Ex.D60 is the Mutation Extract in the name of defendant No.1. Ex.D69 to 78 are the tax paid receipts in respect of suit schedule properties paid by defendant No.1. Further in this case Ex.D104 which is the registered Mortgage Deed executed by defendant No.1 for availing loan in Bharat Co-operative Bank for contributing money while purchasing 'B' schedule property. Further Ex.D80 to 83 are patta book and Krishi book. Ex.D84 to 103 are bills and receipts with regard to report of Boring agency for drilling and development of suit schedule properties and investment made for 72 O.S.No.1721/2005 improvement of suit schedule properties. So from all the above documents, it goes to show that defendant No.1 is being exercised his right of ownership over A & B schedule properties since 1986 to till filing of this suit. It is admitted in the cross-examination of PW1 that plaintiffs are not in joint possession and enjoyment of the suit schedule properties along with defendant No.1. Then what more is required to prove that the plaintiffs after obtaining their respective shares in the house property as per Ex.P1 and Ex.D79 again filed this suit on created document i.e., Ex.P16. So in this case the defendant No.1 established that he is the owner in possession of A & B schedule properties by relying on the oral evidence of DWs.1 to 4. Hence the plaintiffs are not entitled to any share in the A & B schedule properties. Hence I answered Issue No.6 in the Negative.
ISSUE NO.7:
42. In view of the foregoing discussion and observation made on Issue Nos.1 to 6, this Court proceeds to pass the following Order:- 73 O.S.No.1721/2005
ORDER Suit filed by the plaintiffs against the defendants is hereby dismissed.
Parties are directed to bear their own costs. Draw Decree accordingly.
(Dictated to the Judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 20th day of December 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge,Bangalore City.
ANNEXURE List of witnesses examined for the plaintiff:
PW1 B.K.Savitri PW2 K.Manjunath PW3 G.R.Ramachandrappa PW4 Y.N.Beeralingegowda PW5 Mahabaleshwar T.Hegde PW6 Syed Askar Imam
List of documents marked for the plaintiff:
Ex.P1 Partition deed dt.2.2.1989
Ex.P1(a) Signature of PW4
Ex.P1(b) LTM of Smt.Lingamma
Ex.P1(c) Signature of PW3
Ex.P1(d) Signature of PW5
74 O.S.No.1721/2005
Ex.P1(e) to (j) LTM of Smt.Lingamma
Ex.P2 Certified copy of Registered
sale deed dt.31.1.1985
Ex.P3 Mutation Extract
Ex.P4 to 13 Certified copy ten RTC
Ex.P14 Katha extract
Ex.P15 Katha certificate
Ex.P16 Will dt.16.1.1998
Ex.P16(a) Signature of PW2
Ex.P16(b) to (i) Signature of Smt.Lingamma Ex.P17 Registered Will dt.22.2.1984 Ex.P17(a) Signature of PW2 Ex.P17(b) to (e) Signature of late Kempaiah Ex.P18 Letter of Superintendent of police Ex.P19 Report submitted by PW5 Ex.P20 & 21 Photos Ex.P22 Opinion given by PW6 List of witnesses examined for the defendant:
DW1 B.K.Ramaiah DW2 T.Ramakrishne gowda DW3 V.Krishnamurty DW4 P.Anand DW5 N.Kalpana
List of documents marked for the defendant:
Ex.D1 Registered sale deed
dt.1.1.1957
Ex.D1(a) Typed copy of Ex.D1
75 O.S.No.1721/2005
Ex.D2 Registered sale deed
dt.31.1.1985
Ex.D3 Consent letter given by
Smt.Lingamma
Ex.D3(a) LTM of Smt.Lingamma
Ex.D3(b) Signature of DW2
Ex.D3(c) Signature of Anand
Ex.D3(d) Signature of Krishnamurthy
Ex.D4 Death certificate of late
Kempaiah
Ex.D5 Death certificate of
Smt.Lingamma
Ex.D6 to 16 11 RTC extracts
Ex.D17 Mutation extract
Ex.D18 Index of Land
Ex.D19 Certified copy of Record of
Right
Ex.D20 to 61 Certified copies of 42 R of R
extract
Ex.D62 Certified copy of M.R.No.6/06-
07
Ex.D63 to 68 Certified copies of six RTC
Ex.D69 to 78 10 land revenue receipts
Ex.D79 Certified copy if registered Gift
Deed dt.23.3.1977
Ex.D80 Registered Partition Deed
dt.21.1.1998
Ex.D81 Certified copy of assessment
extract
Ex.D82 & 83 Patta book and krushi book
Ex.D84 to 103 20 bills and receipts
Ex.D104 Registered Mortgage Deed
76 O.S.No.1721/2005
Ex.D105 Will dt.10.3.1985
Ex.D105(a) Signature of DW2
Ex.D105(b) Signature of late Kempaiah Ex.D105(c) Signature of Anand Ex.D105(d) Signature of Krishnamurthy (DEVANAND P.NAYAK) XXXVIII Addl.City Civil & Sessions Judge,Bangalore City