Bangalore District Court
Smt.Kausalya vs Smt on 2 April, 2018
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 2nd day of April, 2018
PRESENT: Smt.S.Shobha, B.A., LL.M.,
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.920/2010
PLAINTIFFS :1. Smt.Kausalya,
W/o Krishna Murthy,
Aged 59 years, R/at No.100,
11th Main, 11th Cross,
2nd Phase, Girinagar,
Bengaluru - 560 085.
2. Smt.Vatsala, W/o Narayan,
Aged 57 years, R/at No.2880,
2nd Main, 5th Cross,
Avalahalli Layout, BSK 3rd Stage,
Bengaluru - 560 085.
3. Smt.Manjula,
W/o Renukeshwar,
Aged 51 years,
R/at No.1097, I F Main,
2nd Phase, Girinagar,
Bengaluru - 560 085.
(By Smt.Lata Prasad, Advocate)
-V/S-
DEFENDANTS : 1. Smt.,Shamanthakamani,
W/o Manjunath,
Aged 50 years, No.222,
8th Cross, 40 ft. Road,
I Stage, 2nd Phase, West
Of Chord Road, Manjunathanagar,
Bengaluru - 560 010.
(By Sri K.J.N. Advocate)
2 O.S.No.920/2010
2. The Revenue Officer,
Basavanagudi Range,
Bengaluru Mahanagara Palike,
Bengaluru.
(Exparte)0
Date of institution of the suit: 8.2.2010
Nature of the suit: Partition/
Permanent injunction
Date of commencement of 15.2.2016
recording of evidence:
Date on which Judgment was 2.4.2018
pronounced:
Duration: Days Months Years
24 01 08
: JUDGMENT :
The Plaintiffs have filed this suit for partition of ¼th share by meets and bounds in the Suit schedule properties, separate possession and for cost.
2. The brief facts of the Plaintiff case are that the Plaintiffs and D1 are the only daughters/children to their parents M.Muniyamma and Muniswamappa of Mavalli Bangalore. Muniyamma was the absolute owner of the residential property F-87 (Old No.3), Kempanna Street, Susheela Road, Doddamavalli, Bengaluru-560004 having purchased vacant site from her vendor under registered sale deed dated 5.12.1963 since the date of purchase Muniyamma has been in possession and occupation of the Suit schedule property 3 O.S.No.920/2010 she developed and maintained the property and was paying the taxes and cess to the concerned authority she put up a small construction in the suit site by obtaining a loan and from her small savings. At the time of its purchase, the Plaintiffs were married and were residing with their respective families. D1 was unmarried, hence she was residing with her parents. The Plaintiffs' father Muniswamappa retired from service at BMTC, there was financial constraints in their family, in order to mitigate their financial crisis, the Plaintiffs who have some savings from their family expenses helped their parents to complete the RCC roof building in the Suit schedule property. A few years later their mother intended to put up 1st and 2nd floor construction to the Suit schedule property, therefore again the Plaintiffs have provided financial help complete the 1st and 2nd floor in the suit site, then muniyamma let out several portions for rent while retaining half portion in the 2nd floor for her residence where she lived till her death. In the 2nd floor half portion was let out to Subadramma, entire 1st floor consisting of single bedroom residential house was let out to one Saravana, two bed room portions was let out to are Geeta and ground floor consisting of two shops were let out to one Nirmala and till today the 4 O.S.No.920/2010 same tenants are in occupation. Muniyamma was collecting rent from many years and utilizing the same for her medicine. Due to the old age and retirement from the service, the parents could not get bridegroom to defendant no.1, therefore with joint and collective efforts of plaintiffs and their parents the marriage alliance was brought to 1st Defendant with one Manjuatha who was working at KSSIDC Bangalore. Hence D1 and her husband were residing at Bangalore. The entire marriage expenses of D1 were born by all the Plaintiffs and their mother. When such being the situation their mother Muniyamma out of much love and affection for her 4 daughters executed a Will dated 17.3.1993 equally bequeathing the suit schedule property to all her 4 daughters equally. Admittedly this was a known fact among the relatives and close persons acquainted with Muniyamma that she always intended to give equal share to all her daughters. Page- of Will dated 17.3.1993 reads as follows.
"My Children (daughters mentioned at Sl. No.1 to 4 on page 2 of the WILL) will mutually share the Schedule property equally among them and enjoy the same. My said children will enjoy this property only after the death of my husband. "5 O.S.No.920/2010
Till last day before the death of Muniyamma she spoke out the Suit schedule property to be shared equally among her daughters.
In the year 1996 Muniyamma intended to purchase residential site -cum house at Bangalore hence she obtained loan from canara bank and the Plaintiff stood as guarantors to the said loan thus the Plaintiffs helped their mother and D1, for maintenance and improvement of the suit schedule property. It is further averred that Plaintiffs' father died in the year 1996 and after his death Muniyamma was in good health continued to reside alone in the suit premises on the 2nd floor, taking advantage of residing alone, D1 with malicious intention to grab the Suit schedule property exclusively for herself aided by her husband Manjunath started frequently visiting to her mother on one or the other reason in the pretence of helping and assisting her, over a few years they acquainted with her affairs, both her movable and immovable properties, also jewelleries. It is further averred that D1 along with her husband forced Muniyamma to visit Unani hospital instead of providing Alupatic medicine at good Hospital for her cancer disease but engaged local 6 O.S.No.920/2010 nurse who used to give her paracetamal tablet and insulin injunction. Several instances occurred since from the year 2004-05 and they made efforts to keep Muniyamma away from the Plaintiffs. In the year 2005 Muniyamma had eye sight problem without informing to the Plaintiffs, D1 and her husband brain washed and coerced her to take treatment from their aurvedic personal doctors and medical reports was suppressed by making excuses and subsequently reported the Plaintiffs that all the medical report are normal. Muniyamma was hale and healthy with minor health problem in her old age and had a breast cancer few days before her death. Everyday Muniyamma used to contact the Plaintiffs and use narrate entire days incidence with these plaintiffs, the plaintiffs were very much attached to their mother and visited very often. Hence the Plaintiffs were shocked to hear from D1 that their mother was suddenly admitted to Suguna Hospital and died on 4.12.2009.
Defendant also suppressed the ailment from which Muniyamma was suffering by suppressing the positive report with intend to cheat her sisters by getting documents both in respect of movable and immovable properties and after Muniyamma's death, defendant no.1 tired to get khatha of 7 O.S.No.920/2010 Suit schedule property in her favour, which fact came to the knowledge of Plaintiff when they visited BBMP office to obtain death certificate of their mother, wherein the officials told that the 1st Defendant Shamanthakamani already obtained the same and trying to get the khatha of Suit schedule property transferred to her name and on being enquire with D1, she revealed that she is the only beneficiary under Will dated 7.4.2005 executed by their mother. Thus alleged original Will as well as jewelleries of Muniyamma and original title documents of Suit schedule property was in the custody of defendant no.1 hence the Plaintiffs immediately rushed to the office of BBMP and filed objection alleging they are also L.Rs of Muniyamma and are having equal rights in the Suit schedule property and requesting them not to change khatha. The Will dated 7.4.2005 alleged to be executed by Muniyamma in favour of D1 is a created document by D1 in active collusion of her husband Manjunath and the said documents has no legal sanctity and not legally enforceable it is a sham and bogus documents and thus not binding on the Plaintiffs. In fact the Will dated 17.3.1993 is a genuine will executed by their mother M Muniyamma entitling her 4 daughters to share the Suit schedule property equally among 8 O.S.No.920/2010 themselves. Moreover, the signature of Muniyamma on the alleged Will 7.4.2005 does not match with the signature on the alleged Will dated 17.3.1993, hence the said Will is suspicious in nature. The two attesters of the Will are unduly influenced by the propounder and legatee of the will. The relationship of the Plaintiffs and their mother Muniyamma was cordial and on several occasion in last 7-8 years and even few days before her death Muniyamma expressed that all her daughters shall divide the Suit schedule property equally among themselves. After the death of Muniyamma Plaintiffs called upon requested the 1st Defendant, later they demanded her for the partition of their respective 1/4th share each in Suit schedule property and other movable property in pursuance of Will but defendant no.1 initially kept deliberately prolonging the same but later tried to get the khatha exclusively to her name. Hence the suit for judgment and decree for partition 1/4th share and separate possession in the suit schedule property and to declare the alleged Will dated 7.4.2005 as null and void and not binding on the Plaintiffs and restrain defendants no.1 and 2, their agents by an order of permanent injunction from interfering with their peaceful possession and enjoyment of Suit schedule property 9 O.S.No.920/2010 and also restrain defendant no.2 from effecting change of khatha of Suit schedule property in the name of defendant no.1.
3. After registration of the suit summon issued to the Defendants. Defendant no.1 appeared through her counsel and filed written statement. Defendant no.2 did not appear and he was placed as exparte.
Defendant no.1 filed written statement stating that the suit of Plaintiff is not maintainable, Defendant no.1 has admitted her relationship with Plaintiffs and also admitted their mother Muniyamma w/o Muniswamppa of mavalli Bangalore was the absolute owner of Suit schedule property i.e., Property bearing No.F-87 (Old No.3), Kempanna Street, Susheela Road, Doddamavalli, Bengaluru-560004 having purchased the same from her vendor under registered sale deed dated 15.12.63 and since then she is in possession and enjoyment of the same and was paying taxes. The averments made in para-4 that at the time of purchase of Suit schedule property it was vacant site, with the help of Plaintiffs their mother put up small construction. Also in the year 1996 Muniyamma intended to purchase Site cum residential 10 O.S.No.920/2010 house, so she borrowed loan from Canara Bank by mortgaging Suit schedule property. At that time Plaintiffs were married and residing with their families at Bangalore and Defendant no.1 was the youngest daughter among 4 daughters of Muniyamma and then unmarried and therefore residing with her parents and Plaintiffs' father retired from service their parents were financial constraints in their family, in order to mitigate their financial burden and also give them a peaceful retired life, plaintiffs collectively pooled by their individual resources, i.e. savings by each of the Plaintiffs from their individual family expenses and with this amount they assisted their parents to complete the construction of RCC building and to put up 1st and 2nd floor is denied.
The averments that after construction Muniyamma rented out several portions to several tenants by retaining only half portion in the 2nd floor for her residence and Muniyamma was utilizing rents for her medicines is admitted. The averments due to old age and retirement of parents they were not in a position to get their youngest daughter married, therefore with joint and combined efforts of Plaintiffs with their parents, they were able to bring alliance to Defendant 11 O.S.No.920/2010 no.1 with one Manjunath of Shimoga is denied. It is stated the Plaintiffs never showed any interest nor provided any financial support. Her marriage was arranged marriage by her parents and it was performed by the expenses of her parents. The Plaintiffs never took any responsibility nor offered any financial help but expected costly gifts from their parents.
It is stated that the Plaintiffs made crude attempt to build up a case for themselves to compel D1 for partition of Suit schedule property and enter into terms with them. Plaintiffs after their marriage settled with their respective family and Muniyamma executed registered Will and subsequent to that Will, plaintiffs not bothered to take care and fulfill the needs of their mother, nor enquired about the health condition of their mother, they completely stopped from all responsibilities and communication with her and not came to see her. At this relevant period Defendant no.1 who is youngest daughter very much attached to Muniyamma she with her husband assisted their mother and given all co- operation to her and fulfilled all her needs and requirement and helped her to discharge the loan borrowed by her by pledging the Suit schedule property and used to give her 12 O.S.No.920/2010 moral and personal support, used to stay in the house of her mother. Muniyamma suffered uneasy and had bad health problem and Defendant no.1 got treated her mother for the ailment. The averments that after the death of father of Plaintiffs in the year 1996 Muniyamma was in good health continued to reside alone in the portion of 2nd floor of Suit schedule property and taking advantage of this aloneness D1 with malicious intention to grab the entire Suit schedule property to herself aided by her husband started frequently visiting Muniyamma on one or the other pretext on the guise of helping her and slowly over a period of few years made themselves aquatinted with Muniyamma's affairs including her properties both movable and immovable property and forced Muniyamma to take treatment at Unani hospital instead of providing Alupatic medicine at good Hospital for her cancer decease but engaged local nurse who used give her paracetamal and insulin, Defendant also suppressed the ailment from which Muniyamma was suffering and they were not allowing the Plaintiffs to converse comfortable and also kept vigilance about who would be spoken and with deliberate intention interrupted Muniyamma speaking with Plaintiffs are all denied. Further averments several instances occurred 13 O.S.No.920/2010 since from the year 2004-05 and made efforts to keep Muniyamma away from Plaintiffs, in the year 2005 Muniyamma had eye problem without informing the Plaintiffs, Defendant no.1 and her husband brain washed and coerced her to take treatment from their personal Unani and Ayurvedic doctors and medical reports was suppressed by making lame excuses and subsequently reported the Plaintiffs that all the medical report are normal, that Muniyamma was hale and healthy with minor old age health problem had a breast cancer few days before her death is denied. Muniyamma kept contact with Plaintiffs every day she was narrating the entire day's incidence with these plaintiffs, the Plaintiffs were very much attached to their mother and visited very often. Hence the Plaintiffs were shocked to hear from Defendant no.1 that their mother was suddenly admitted to Suguna Hospital and she died on 4.12.2009 are all denied as false.
The allegations that the Plaintiffs approached the BBMP office to obtain death certificate of their mother at that time Defendant already obtained Death certificate and intending to get the Khatha changing to her name. All original title documents and jewels in the custody of Defendant. It is alos 14 O.S.No.920/2010 dined with the aid of her husband has created concnoted documents and Plaintiffs are not entitled to equal share in the Suit schedule property. The will is not binding on signature of Muniyamma found in the Will in the year 1993 is not tallying with signature are all denied.
It is stated D1 and her family members were closely attached to Muniyamma. At no point of time this Defendant cheated her sisters and mother by creating the Will to grab the Suit schedule property for herself. It is stated in fact Muniyamma after execution of the Will thereafter realized Plaintiffs have tendency to help her mother and had bitter experience with attitude of the Plaintiffs and lack of support from the plaintiffs. Therefore Muniyamma changed her mind and revoked her earlier Will of the year 1993 and executed fresh Will in the year 2005, after the death of Muniyamma D1 called upon Plaintiffs and tried to convince them to accept whatever they are entitled under the will dated 15.4.2005 before the close relatives and friends, but the Plaintiffs did not accept and Plaintiffs also threatened the tenants to quit them forcibly with the help of goondas, the complaint of this defendant was not registered as the matter is civil in nature. 15 O.S.No.920/2010
D1 is ready and willing to settle the issue as per the contents of the Will Deed dated 15.04.2005 and she is ready to pay Rs.3 lakh to each of the Plaintiffs and one stone bangle and avvallakki chain to Plaintiff-1 and Attige chain to Plaintiff-2 and two line chain to Plaintiff-3. The averments made in para.13 to 22 are not true. There is no cause of action. CF paid is not sufficient. Hence prays to dismiss the suit with exemplary cost.
Further averments that Muniyamma had equal love and affection to all her 4 daughters and she executed Will ... bequeathing the Suit schedule property equally to her four daughters by mentioning as my children "daughters mentioned at Sl.No.1 to 4 on page 2 of the Will" expressing her intention to share the Suit schedule property equally by her 4 daughters, even till last day of her death Muniyamma expressed same intention.
4. On the basis of the pleadings of the parties, the following issues have been framed by my learned predecessor:
1. Whether plaintiffs prove their 1/4th share in the suit schedule property and entitled for separate possession by meets and bounds?16 O.S.No.920/2010
2. Do they prove that the alleged Will dated 7.4.2005 is null and void and not binding on them?
3. Whether 1st defendant proves the last Will executed by Smt.M.Muniyamma as contended in her written statement?
4. Whether the plaintiffs prove their lawful possession over the suit schedule property?
Recasted Issue
5. Whether the plaintiffs prove that, the defendant No.1 is avoiding to effect the partition and to allot their legitimate share in the Suit property?
6. Do they entitled for the reliefs sought for?
7. What order and decree?
5. The plaintiffs in order to prove their case, got examined 3rd plaintiff as PW.1 and relied upon the documents at Ex.P.1 to 22. Defendant No.1 herself is examined as DW.1 and got examined one more witness as DW.2 and relied upon the documents at Ex.D.1 to D.11.
6. Heard the arguments. Perused the pleadings and the evidence on record and also citation relied upon by the plaintiffs advocate.
7. My findings on the above points are as under: 17 O.S.No.920/2010
Issue No.1 .. Partly in the affirmative
Issue No.2 .. In the affirmative
Issue No.3 .. In the negative
Issue No.4 .. Partly in the affirmative
i.e. only with respect to
item no.1 of Suit schedule
property
Recasted ..
Issue No.5 .. In the affirmative;
Issue No.6 .. Partly in the affirmative
Issue No.7 .. As per final order;
for the following:
REASONS
8. Issue Nos.1 to 6:- The 3rd Plaintiff examined as PW1 and got marked 23 documents. She has filed affidavit in view of her chief-examination retirating the averments made in the pliant.
9. Ex.P.1, 8 to 10 are the rental receipts alleged to be pertaining to Item No.1 of the Suit schedule property. Ex.P.2 is the objection dated 13.1.2010 submitted by the Plaintiffs befoe the 2nd Defendant requesting not to change Khatha in favour of Defendant no.1 in respect of Item No.1 of Suit schedule property, since they are also L.Rs of Muniyamma. P.3 and 4 are the khahta certificate and khatha extract and Ex.P.5 i.e. Encumbrance certificate pertaining to Item No.1 of Suit schedule property standing in the name of Muniyamma, P.6 and 7 are the death certificate and death ceremony card 18 O.S.No.920/2010 of Muniyamma, Ex.P.11 is the letter issued by the National Co-operative Bank Ltd., dated 14.01.2011 which evidences on 12.7.2000. Muniyamma borrowed a loan of rs.2,50,000 by mortgaging the title deeds of Item of No.1 of Suit schedule property to which the parties to the suit have stood as co- obligants and the said account appears to have closed on 9.11.2002. Ex.P.12, 13, 15, 19 & 20 are E.C's pertaining to Item No.2 to 4 Suit schedule property reveals the name of Defendant-1. Ex.P.14 16 21 are the cc; of the sale deed pertaining to Item 4 to 6 of Suit schedule property standing in the name of Defendant-1 as purchaser for valuable considerations. Ex.P.17 18 are the self-assessment extract with respect to the above said Item 2 to 4 of Suit schedule property standing in the name of Defendant-1, Ex.P22 is the certified copy of registered Will dated 17.3.93 executed by Miniyamma in favour of her 4 daughters i.e., Plaintiffs and Defendant-1 bequeathing Item No.1 of Suit schedule properties equally among the plaintiffs and Defendant no.1. Ex.P.23 is certified copy of another registered Will dated 7.4.2005 alleged to be subsequently executed by Muniyamma exclusively in name of Defendant no.1 with respect to item no.1 of Suit schedule property. On examination of this 19 O.S.No.920/2010 document there is reference about canceling of previous Will dated 17.3.1993 by Muniyamma preceding executed in favour of Plaintiffs and Defendants equally.
10. PW1 has been subjected to lengthy cross-examination by the counsel for Defendant 1 from her over all statement both in the chief and as well as in the cross examination it was established that Item No.1 of Suit schedule property was the absolute property of Muniyamma till her death Muniyamma was in exclusive possession and enjoyment of this property by letting major portion of the houses and shops to different tenants, while retaining a portion for her own residence in the 2nd floor and she used to collect rents and using it for her medicines etc.,
11. It is the case of Plaintiffs that Muniyamma out of natural love and affection towards all her children who are Plaintiffs and Defendant no.1 herein, executed a registered Will dated 17.3.1993 bequeathing Item No.1 of Suit schedule property equally in favour of Plaintiffs and Defendant no.1. Thereafter the father of Plaintiffs and Defendant no.1 died in the year 1996 and Muniyamma who was hale and healthy with minor old age problems was started residing all alone 20 O.S.No.920/2010 with minor age old deceases, Defendant no.1 and her husband by taking advantage of alone ness of Muniyamma developed close intimacy and started frequently visiting her on the guise of taking care and they acquainted with her properties, both movable and immovable including jewels and also title deeds of her properties and were not allowing the Plaintiffs to come in contact with their mother and not allowing them to speak with her etc., and this D1 was able to brain wash Muniyamma and get the document created alleged to be Will dated 07.04.2005 as if Muniyamma exclusively bequeathed Item No.1 of Suit schedule property in favour of D1 by canceling the previous Will dated 17.3.1993 as per Ex.D.8 bequeathed by her equally in favour of the Plaintiffs and Defendant no.1 the said Will is not a genuine Will it is a sham and bogus document, at no point of time Muniyamma had any intention to revoke the previous Will dated 17.3.1993 and executed subsequent Will dated 7.4.2005 bequeathing item no.1 exclusively in the name of D1. Hence the said document has no legal sanctity, it come under the suspicious circumstances therefore the same cannot be enforceable under law. D1 by washing the brain of Muniyamma along with attesting witnesses got executed the 21 O.S.No.920/2010 said document. In fact Muniyamma was not aware of the nature and contents of subsequent Will. So it is a void document. On the other hand it is the previous Will dated 17.3.1993 has legal sanctity and it is enforceable document.
12. I have gone through the citations relied upon by the Plaintiffs advocate reported in AIR 2009 SC1766, (2009) 1 SCC 354, AIR 2009 SC 951, AIR 2007 SC 2219, AIR 1959 SC 443 and AIR 2003 SC 761.
13. The Plaintiffs have contended that Item No.2 to 4 of the Suit schedule properties are also exclusive properties having acquired by Muniyamma from the rents received by her from Item No.1 of the Suit schedule property also from the loan by Banks and financial help extended by the Plaintiffs. Hence the Plaintiffs are entitled to 1/4th share each in Item No.2 to 4 of the Suit schedule properties also.
14. On the other hand Defendant-1 herself is examined as DW.1. She too has filed affidavit in lieu of her chief- examination retreating the averments made in her written statement and relied upon 11 documents Ex.D.1 to 11 also examined one of the attesting witness to the Will dated 22 O.S.No.920/2010 7.4.2005. He too filed the affidavit in lieu of examination as DW.1. He has identified his signature both in the Will as well as revocation of Will i.e., Ex.D.7 and 8.
15. Ex.D.1 to 6 and 11 are the medical reports, prescriptions, bills of different hospitals pertaining to Muniyamma. Ex.D.7 is the original subsequent Will dated 7.4.2005 alleged to have executed by Muniyamma in favour of Defendant-1 with respect to Item no.1 of Suit schedule property. Ex.D.8 is also original revocation of Will dated 15.4.2005. D.9 dated 5.12.1984 is the document pertaining to the husband of Defendant-1. Wherein her husband appears to have obtained VRS and by virtue of which an amount of Rs.3,21,277/- was received by him. D.10 is his bank passbook (SBM) pertaining to husband of D1.
16. The contention of Defendant-1 is that after executing the Will dated 17.3.1993 by her mother bequeathing Item No.1 equally in favour of her 4 daughters, the Plaintiffs even after knowing this fact did not bothered to take care of their mother, they did not enquired her health, they stopped all sort of communication with their mother and not come forward to extend any financial or moral support but expected 23 O.S.No.920/2010 monetary benefits from Muniyamma. At this crucial situation it is the D1 and her husband who extended all types of co- operation both morally, financially and medically and they used to fulfill all her needs and requirement by helping a lot and reimbursed to discharge the loan which was obtained by pledging Item 1 of Suit schedule property, she also used to stay with Muniyamma by leaving her children in the company of her husband, she use to take her to different hospitals with her husband. After execution of first Will Muniyamma had bitter experience from the attitude and conduct of the Plaintiffs and realized that Plaintiffs have no tendency to helping her anymore, because of this bitter experience she changed her mind and executed fresh Will of the year 2005 hence the said will is a genuine Will and it is duly attested by the witnesses. It was executed by Muniyamma at her free Will and volition without any force or influence and there is no foul play by D1 in executing the subsequent Will by Muniyamma as alleged by the Plaintiffs. Hence the Plaintiffs are bound by the said Will. She is ready to give the Plaintiffs cash and jewels as stated by her mother in the Will dated 2005. Inspite of her requesting the Plaintiffs to take cash and jewellery they refused and harassing this Defendant by filing 24 O.S.No.920/2010 objection before 2nd Defendant. DW1 further stated Item No.2 to 4 are her absolute and self-acquired properties. Having acquired by her hard earn money and also her husband. She is a graduate, so used to take tuition classes and her husband also a government employee having definite income from the savings of his salary and also he received amount during his submitting VRS as per document Ex.D.9 dated 5.12.1984. Even after retirement her husband was working at different firm and thus they were able to purchase Item No.2 to 4 properties on their own income. Plaintiffs are knowing fully well that the said properties are exclusive properties of Defendant no.1 and they are not having any right, title, interest or possession inspite of it they are falsely claiming right in the said properties. Hence the Plaintiffs are not entitled to 1/4th share either in item no.1 or item no.2 to 4 of the Suit schedule properties.
17. Dw1 examined as DW.1 who is one of the attesting witness to Ex.P.23 who is admittedly close relative of both the parties. His evidence is not satisfactory regarding due execution of Will by Muniyamma in favour of D1. in fact he is not able to say that the contents of the Will was read over 25 O.S.No.920/2010 to Muniyamma before the witnesses and only after understanding the contents Muniyamma signed before the witnesses. He is also not able to say as to how many signatures were put by Muniyamma to the said Will. His statement before the court is not tallying with contents of the document and also evidence of D1. His evidence is contraty to Ex.D2. Thus the Will dated 7.4.2005 executed by Muniyamma is suspicious.
18. By considering the oral and documentary evidence and also given set of facts and circumstances I am of the opinion that the above Will has not seen the light of the day, it is crystal clear that the said Will is not freely executed by Muniyamma and there is every chances of suspecting regarding free execution of subsequent Will in favour of Defendant no.1 Infact D1 herself deposed before the court that her mother was exclusively looked after by her and her husband and the Plaintiffs have lost all the connection with their mother and she used to take Muniyamma to different hospitals alleging to help her financially but except medical documents Ex.D.1 to D6, absolutely she has not produced any document for having helped her financially. Admittedly 26 O.S.No.920/2010 Muniyamma after obtaining the loan by Bank she herself might have repaid the same as per Ex.P.11. Since D1 residing with her mother hence the suspicion that she influenced her mother execute Ex.D.7 cannot be ruled out, there is every possibility of D1 exercising undue influence upon her mother in getting the Will of the year 2005 exclusively in her favour as per Ex.D.8. Moreover alleged the second Will has first come into existence, thereafter the revocation deed has come into existence, which creates suspicion.
19. Thus, by considering the over all oral and documentary materials on record, I am of the opinion that Defendant1 failed to prove that Muniyamma executed fresh Will by her own free will without any compulsion or undue influence and also knowing the nature of the document that is being executed by her in favour of D1. Hence the due execution of Will dated 7.4.2005 by Muniyamma is not proved preponderance probabilities. Therefore I hold that the said document is not binding on the plaintiffs, not free of suspicion. Hence it has no legal sanctity.
27 O.S.No.920/2010
20. The Plaintiffs contended Item No.2 to 4 also purchased by their mother by savings out of rent and also by the financial help extended by them and also from loan by mortgaging the property but except the rent receipt and bank letter the Plaintiffs have failed to produce any material documents to show their mother was receiving hand full of rents, they also helped her financially to purchase these properties. Admittedly the title documents of these properties reveals the name of D1 and also looking to oral and documentary evidence placed on record clearly shows that it is the D1 who is exclusive owner of the said properties. In fact the Plaintiffs have not disputed D1 was graduate she used to take tuition classes and had her own earnings, also her husband was employed at government service and took VRS in the year 1984 and got a sum of Rs.3,21,277/-, in those days in the year 1984 getting of Rs.3,21,277 is not a small amount, in fact it is quite big amount. Therefore, it can be safely inferred that from the earning of husband of D1 who received hand full of amount at the time of his VRS. Item No.2 to 4 has been purchased in the name of D1. Hence the contention of the Plaintiffs that Muniyamma from her own savings, loan and also financial help extended by the Plaintiff, 28 O.S.No.920/2010 therefore item no.2 to 4 cannot be believed at any stretch of imagination without proof of a single oral or documentary evidence. Hence in the fact and circumstances the claim of D1 that Muniyamma executed the Will subsequent out of her to free mind with respect of Item No.1 in favour of D1 exclusively cannot be believed. At the same time the contention of plaintiffs that Item No.2 to 4 are their joint family and ancestral properties cannot be believed and accepted. Hence I would say the Plaintiffs and D1 are equally entitled to 1/4th share with respect to Item No.1 of Suit schedule property. The claim of plaintiffs with respect to Item No.2 to 4 has to be rejected. Hence, Issue No.1 is answered partly in the affirmative, Issue No.2 in the affirmative, Issue No.3 in the Negative, Issue No.4 and 5 in the partly in affirmative, Issue No.6 partly in the affirmative.
21. Recasted Issue No.5 and 7 In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R The suit of the Plaintiffs is partly decreed. Plaintiffs are entitled to 1/4th share only in Item 29 O.S.No.920/2010 No.1 of the Suit schedule property. Their claim with respect of Item No.2 to 4 is dismissed.
Parties are directed to bear their own cost.
Draw decree accordingly.
(Dictated online to the Typist, corrected and then signed and pronounced by me in the open court on this the 2nd day of April, 2018) (S.Shobha) LII Addl. City Civil & Sessions Judge, Bengaluru.
:: A N N E X U R E ::
List of the witnesses examined for the plaintiff P.W.1 Smt.Manjula List of the documents marked for the plaintiff :
Ex.P.1 Rent receipt
Ex.P.2 Objections for khata transfer
Ex.P.3 Khata certificate
Ex.P.4 Khata extract
Ex.P.5 Encumbrance certificate
Ex.P.6 Death certificate
Ex.P.7 Invitation card for annual ceremony
Ex.P.8 to P.10 Rent receipts
Ex.P.11 Bank letter
Ex.P.12 & P.13 Encumbrance certificates
Ex.P.14 Certified copy of sale deed
Ex.P.15 Encumbrance certificate
Ex.P.16 Certified copy of sale deed
Ex.P.17 & P.18 Self assessment tax extract
Ex.P.19 & P.20 Encumbrance certificates
Ex.P.21 Certified copy of the sale deed
Ex.P.22 Certified copy Will
Ex.P.23 Certified copy of the will dated
7.4.2005
30 O.S.No.920/2010
List of the witnesses examined for the defendants D.W.1 Shamanthakamani D.W.2 G.Srinivasa List of the documents marked for the defendant:
Ex.D.1 Report from V.V. Diagnostic Centre
Ex.D.2 Report of Dr M.C.Modi Hospital
Ex.D.3 Report of Dr.Nagaraja Diagnostic
Centre
Ex.D.4 Prescription of Dr.Ashok
Ex.D.5 Wockhardt hospital bill
Ex.D.6 Suguna hospital report
Ex.D.7 Will dated 7.4.2005
Ex.D.8 Revocation of will
Ex.D.9 & D.10 VRS documents and pass book
Ex.D.11 Medical prescriptions
LII Addl. City Civil & Sessions Judge,
(CCH-53), Bengaluru.