Bangalore District Court
Smt.Shantha vs Smt. Jyothi Rajgopal on 28 January, 2021
IN THE COURT OF THE XXXVIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY(CCH39)
Dated this the 28th day of January 2021
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
Original Suit No.6316/2009
Plaintiff:
Smt.Shantha, W/o late Sri B.R. Srinidhi, aged 80
years, Residing at No.1327, 26th Main, 32 'F'
Cross, 4th 'T' Block, Jayanagar, Bangalore560
041.
[by advocate Sri H.S.D]
/ Vs. /
Defendants:
1. Smt. Jyothi Rajgopal, W/o Sri K.Rajgopal,
aged about 65 years, residing at No.7/43,
Bharadwaj, 3rd Main, 7th Block, Jayanagar,
Bangalore560 082.
2. Sri S.G. Vasudev, S/o Gopal Iyengar, aged
about 70 years, residing at No.71, ST Bed,
Koramangala, Bangalore560 034.
3. Sri Bharani V. Setlur, S/o Sri S.G.Vasudev,
aged about 35 years, residing at No.35, 2nd
Cross, 10th Main, Indiranagar, Bangalore
560 038.
4. Smt. Sharada Narayan Iyengar, W/o Sri
B.V. Narayan Iyengar, aged about 82 years,
2
O.S.No.6316/2009
residing at No.2A, Lakshmi Nivas,
Shanthinagar, Hyderabad.
5. Smt. Jayalakshmi Iyengar, W/o H.V.R.
Iyengar, aged about 81 years, Residing at
34759/2, Suryodaya, Bharkathpura,
Hyderabad27.
6. Smt. Rama Gopinath, W/o K.Y. Gopinath,
aged about 78 years, residing at No.353,
35th Cross, V Block, Jayanagar, Bangalore
560 041.
7. Smt. Rukmini Raghavan, W/o Sri S.B.
Raghavan, Aged about 75 years, Residing
at No.41, 5A Block, Koramangala,
Bangalore560 034.
8. Smt. Amruthavalli Srinath, W/o Sri K.P.
Srinath, aged about 70 years, residing at
No.5617, Whitney Millway, Rock ville, MD
20852, U.S.A.
9. Smt. Bhargavi S. Kumar, W/o Sri Shirish
Kumar, aged about 65 years, Residing at
4706, 87th St. SW. Mukilteo, WA 98275,
U.S.A.
10.Smt. Prabha, W/o Narasimha Iyengar,
Aged about 80 years, Residing at No.74, 8 th
Stage, R.M.V. Extension,Bangalore.
11.Smt. Krupa, W/o Rangaraj, aged about 78
years, Residing at No.26, South End Road,
Seshadripuram, Bangalore560 020.
12.Sri Vijay, S/o Sri C.M. Srinivas, aged about
34 years, Residing at No.1272, 32nd 'D'
3
O.S.No.6316/2009
Cross, 26th Main, 4th 'T' block, Jayanagar,
Bangalore560 041.
13.Sri Sriram S/o C.M.Srinivas, aged about 34
years, R/o No.1272, 32nd 'D' Cross, 26th
Main, 4th T Block, Jayanagar, Bangalore
560 041
14. Smt. Sudha, D/o Sri Srinath, aged about
50 years, at No.26, South End Road,
Seshadripuram, Bangalore560 020.
15.Sri Aditya, S/o Sri Narasimhan, aged about
35 years, No.26, South End Road,
Seshadripuram, Bangalore560 020.
[Defendant No.1 by advocate Sri S.N.
Defendants 2 and 3 by advocate Sri A.N.D.,
Defendants 4 to 15 placed exparte.]
Date of Institution of the suit 16092009
Declaration, partition,
Nature of suit : separate possession and
mandatory injunction.
Date of commencement of
Evidence : 21022014
Date on which the judgment is
pronounced : 28012021
Years Months Days
Duration taken for disposal :
11 04 12
JUDGMENT
4 O.S.No.6316/2009 The Plaintiff has filed this suit against the defendants for declaration, alternatively for partition and separate possession and mandatory injunction.
2. The case of the Plaintiff is that the main propositor late Sri Vijayaraghavachar had 3 sons viz., Sri C.M.Narayan Iyengar, Sri C.M.Seetharam Iyengar and Sri C.M.Garudachar. Plaintiff is the natural daughter of Sri C.M.Seetharam Iyengar. Said C.M. Seetharam Iyengar is no more. Further case of the plaintiff is that she being a natural daughter of Sri C.M. Seetharam Iyengar was given in adoption to Sri C.M. Garudachar and she is the adoptive daughter of late C.M. Garudachar. There are so many documents produced to show that she is the adoptive daughter of late C.M. Garudachar.
Further plaintiff submits that C.M. Garudachar had a son by name Sri Ramkumar, who married one Smt. Goda Devi. All the three i.e., C.M. Garudachar, C.M. Ramkumar and his wife Smt. Goda Devi are no more. C.M. Garudachar died on 10031951. Wife of 5 O.S.No.6316/2009 Ramkumar Smt. Goda Devi predeceased on 1510 2002 and Sri C.M. Ramkumar died on 712008. During the life time of main propositor Sri Vijayaraghavachar had various movable joint family properties which were distributed among himself and his sons and the immovable properties were divided among his children under partition deed dated 118 1945. In the said partition, property bearing No.3, B.P.Wadia Road, Bangalore was allotted to Sri C.M. Garudachar. After death of late C.M. Garudachar the said property has been allowed to be developed by a developer by Sri C.M. Ramkumar. Said Sri C.M. Ramkumar got one apartment therein, which was sold by him during his life time.
Further, said Sri C.M. Ramkumar purchased the property on 7/43, 3rd Main road, Jayanagar 7th block, Bangalore, under sale deed dated 10031993 from the joint family nucleus. The said property is described in 'A' schedule of the plaint. From the joint 6 O.S.No.6316/2009 family assets, Sri C.M. Ramkumar also purchased a property consisting of farm land and cottage at Jain Farms of Begur village. This is not agricultural land. The said property described in schedule 'B' of the plaint. C.M. Ramkumar had substantial movables of the joint family and those movables are described in schedule 'C' of the plaint.
As the entire assets were of the joint family, plaintiff had half share in schedule 'A' to 'C' properties, as she was the adoptive daughter of late C.M. Garudachar. C.M.Ramkumar did not have the authority to write a Will with respect to the joint family properties.
Late C.M. Ramkumar and Smt. Goda Devi did not had issues. They were disappointed and extremely depressed on account of not having issues. Smt. Goda Devi was quite unwell for some time due to illhealth which has caused to both C.M. Ramkumar and Goda Devi psychological problems and both of them were 7 O.S.No.6316/2009 not having sound and disposable state of mind. In fact it was diagnosed that Smt. Goda Devi had lung cancer and she died of lung cancer.
Smt. Jyothi Rajgopal, who is the 1st defendant and sister of Smt. Goda Devi was the tenant in the first floor of schedule 'A' property. Sri C.M. Ramkumar and Goda Devi were living in the ground floor of the said property. Sri C.M. Ramkumar and Goda Devi being terribly depressed as they were not having issues were being consoled by the 1st and 2nd defendants as well as plaintiff. But the plaintiff being a married with children, was living at the distance from residence of Sri C.M. Ramkumar. Although plaintiff used to visit twice or thrice in a week to Sri C.M. Ramkumar and Goda Devi and used to spend substantial time with Sri C.M. Ramkumar and Goda Devi every day. Sri C.M. Ramkumar was not employed as such he never had any independent income of his own and he used to spend most of the time at home with his wife and 1 st 8 O.S.No.6316/2009 defendant. C.M.Ramkumar died on 712008 leaving behind him schedule 'A' to 'C' properties and plaintiff as his sole surviving heir. Said C.M. Ramkumar had no any issues and plaintiff being a sister came under ClassII of the Schedule II of the Hindu Succession Act. As such, plaintiff is the sole surviving heir. All the HUF properties came in the hands of late C.M. Ramkumar by way succession to the plaintiff. Therefore, the schedule 'A' to 'C' properties are ancestral properties, and the plaintiff is also having half share and remaining half share belongs to C.M. Ramakumar, and on his death plaintiff succeeded to the same. Even if the properties were to be self acquired property of late C.M. Ramkumar, plaintiff would become entitled to the said property by way of succession.
Further, plaintiff submits that she is the daughter of late C.M. Garudachar and in the event of her status as a adoptive daughter being challenged or 9 O.S.No.6316/2009 disputed, she would be an heir as agent of late C.M. Ramkumar and in such event she would be an heir along with defendants 4 to 15. The reason is defendant Nos.4 to 9 are the sisters of plaintiff, defendant Nos.10 and 11 are children of Sri Narayana Iyengar, who is the brother of C.M. Garudachar and defendants 12 to 15 are grand children of said Sri Narayana Iyengar. As such they would also be agents. In view of the plaintiff being adoptive daughter, defendants 4 to 15 do not have the right. However, as they are likely to claim rights, therefore they are necessary parties and arrayed as defendants.
The defendant No.1 is sister of late Smt. Goda Devi, defendant No.2 is brother of late Smt. Goda Devi and defendant No.3 is son of 2 nd defendant and all the three of them claim that late C.M. Ramkumar and Goda Devi have left a joint Will executed by them bequeathing the suit schedule properties to them and are in possession of the schedule 'A' and 'B' properties 10 O.S.No.6316/2009 and making claim on schedule 'C' property. Said C.M. Ramkumar and Goda Devi had not executed any Will and a false claim is being made by the defendants 1 to
3. Therefore, plaintiff submits that she is the absolute owner of schedule 'A' and 'B' properties and she is not in possession thereof. Both schedule 'A' and 'B' properties are in the possession of the 1 st defendant. The various documents relating to schedule 'C' properties are in the custody of the defendants 1 to 3. After death of late Sri C.M. Ramkumar, the defendants 1 to 3 have taken possession and custody of the suit schedule properties.
The plaintiff made a demand with defendants 1 to 3 to hand over possession of schedule 'A' and 'B' properties and to hand over documents relating to schedule 'A' properties. But, defendants 1 to 3 are not ready to do so and claimed that they are the owners on the basis of the Will allegedly executed by Sri C.M. 11 O.S.No.6316/2009 Ramkumar and Goda Devi and they handed over copy of the alleged Will claimed by them. Copy of the said Will also furnished in this case. The original document in respect of schedule 'A' to 'C' properties are with the the defendants 1 to 3.
The plaintiff came to know on 992009 that the 1st defendant is planning to alienate schedule 'A' and 'B' properties with a view to get higher price and trying to alter the character of the schedule 'A' and 'B' properties. Further, plaintiff submits that on the same day she came to know that the defendants 1 to 3 are making hectic efforts to draw amount from respective authorities in respect of schedule 'C' property. The defendants 1 to 3 are not entitled to collect the money from the authorities with respect of 'C' property. Therefore, plaintiff made a demand for delivery of possession of schedule 'A' and 'B' properties and hand over the documents relating to schedule 'C' properties in the month of February 2009 and the defendants 1 12 O.S.No.6316/2009 to 3 refused the same in the month of February 2009 and the cause of action for filing of this suit arose in the month of February 2009.
Further plaintiff submits that cause of action arose for filing of this suit in the month of February 2009 and subsequently on 992009 when the plaintiff came to know the defendant Nos.1 to 3 are trying to alienate and deal with schedule 'A' to 'C' properties within jurisdiction of this Court. Therefore, the plaintiff requested the Court to decree the suit as prayed in prayer column of the plaint.
3. The Defendant No.1 filed Written Statement contending that suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Further, the defendant No.1 submits that plaintiff's claim against the 1st defendant is false, vexatious and filed this suit solely with a view to obtain a relief, which is not entitled to on facts and under law. In para 4 of the Written Statement defendant No.1 13 O.S.No.6316/2009 submits that residential immovable property bearing municipal No.3 of B.P. Wadia road, Basavanagudi road was the sole and absolute property of one C.M.Vijayaraghavachar, purchased out of his own earnings without any aid of ancestral funds and as per the partition deed dated 1181945, late C.M.Vijayaraghavachar conveyed and transferred the above said property to his eldest son late C.M.Garudachar. Even though the document is styled as partition deed, but it was an effect of partitioncumsale as the property was valued at Rs.50,000/ and late C.M.Garudachar paid his two brothers a sum of Rs.16,000/ for releasing their interest and share in the above said property.
The defendant No.1 further submits that late C.M.Garudachar enjoyed the above said property as his sole and individual property, wherein none of his brothers have right, title and interest. The defendant No.1 submits that late C.M.Garudachar was an efficient industrialist and business person engaged in 14 O.S.No.6316/2009 the transportation of business. The said C.M. Garudachar had a girl child, who died in her infancy. The only surviving child of C.M.Garudachar is his son by name late C.M. Ramkumar, who from very young age engaged himself in the business of his father who is a prime person for the success of business financially. Late C.M.Garudachar died intestate on 10.3.1952 leaving behind his son late C.M.Ramkumar as his only heir, to succeed to his properties and assets. After death of late C.M.Garudachar, C.M.Ramkumar continued to manage his business ventures and continued to reap handsome returns therefrom. In or about the year 1953, said C.M.Ramkumar married one Goda Devi, the sister of Defendant No.1. Said C.M.Ramkumar and his wife Goda Devi had no issues. They looked upon Defendant No.1 who was 13 years younger to Goda Devi as their daughter and lavished all love and affection upon her. Smt.Goda Devi died on 15.10.2001 and C.M.Ramkumar died on 7.1.2008. 15
O.S.No.6316/2009 After his demise it was brought to light that even during the life time of Goda Devi i.e., on 3.11.2000, they had executed a joint Will indicating therein the disposition of their movable and immovable properties after their demise. The movable and immovable properties of said C.M.Ramkumar and Smt.Goda Devi , after their demise, divided and distributed in strict accordance with their Will and possession thereof was delivered to the respective legatees.
Further, Defendant No.1 submits that the plaintiff, who is paternal cousin of C.M.Ramkumar, being the daughter of late C.M.Garudachar's younger brother was an infrequent visitor to C.M.Ramkumar's household and she had no relationship with late C.M.Garudachar except being the daughter of his younger brother and had no claim of any kind in, over his properties. The plaint schedule properties are all derived in one form or another from the movable and immovable properties of late C.M.Garudachar and late 16 O.S.No.6316/2009 C.M.Ramkumar was the only legal heir of C.M.Garudachar. Hence, suit filed by the plaintiff is liable to be dismissed in limine for want of cause of action.
The Defendant No.1 further submits that even assuming, but not admitting,if the plaintiff is adopted daughter of late C.M.Garudachar, the Plaintiff has not derived any to the properties of late C.M.Garudachar on his demise. As per law applicable as on the date of demise of late C.M.Garudachar, the Plaintiff could not have been adopted and hence she did not derive any right to any part of his properties.
The Defendant No.1 further submits that the suit is clearly barred by limitation and not maintainable. Late C.M.Garudachar of whom plaintiff claims to be adopted daughter died as early as on 10 31952 and C.M. Ramkumar, who died on 712008, for nearly 58 years, was in ownership, possession and occupation, management and control on all his 17 O.S.No.6316/2009 movable and immovable properties adversely and hostilely to the plaintiff's alleged rights therein. The plaintiff has not initiated any step with regard to her alleged rights to the property for such a long period of time. Hence, the plaintiff forfeited her rights under the law of adverse possession and late C.M.Ramkumar has perfected his rights within the provision of law of adverse possession.
The Defendant No.1 admitted the averments made at para 3 and 4 of the plaint as true, but denied the averments made at para 5 to 11 as false and untrue.
In para 20 of the Written Statement the defendant No.1 admitted to the extent of late C.M. Ramkumar and late Goda Devi had no issues and also admitted Goda Devi succumbed to lung cancer. But defendant No.1 submitted that even though late C.M. Ramkumar and late Goda Devi had no issues, they were living happily and peacefully. Rest of the 18 O.S.No.6316/2009 averments made with regard to health condition of C.M.Ramkumar and his wife Goda Devi has been denied and not admitted by the 1st defendant. Further, defendant No.2 denied averments made at para 13 to 17 as false and untrue.
In para 29, the defendant No.1 submits that late Goda Devi and late C.M.Ramkumar had executed valid Will with advise and assistance of their Chartered Accountant and said Will is valid and enforceable by law. The terms of the Will have been implemented and the properties mentioned in the said Will have been distributed in strict accordance therewith. The rest of the averments made at para 18 of the plaint has been denied by the defendant No.1.
At para 30 of the Written Statement, defendant No.1 denied that the Plaintiff is the absolute owner of the suit schedule A and B properties, as alleged in para 19 of the plaint. Further submits that the various properties owned by late C.M.Ramkumar and Goda 19 O.S.No.6316/2009 Devi have been delivered to the respective legatees and are in their valid possession. The defendant No.1 also denied all the averments made out at para 20 to 22 in the plaint as false and untrue and plaintiff would be put to strict proof of the same. In para 34, the defendant No.1 submits that the cause of action as alleged in para 17 of the plaint is false, imaginary and vexatious and therefore requested the Court to dismiss the suit filed by the plaintiff in the interest of justice and equity.
4. The 2nd defendant filed a Written Statement contending that suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Further, the defendant No.2 submits that plaintiff's claim against the 2nd defendant is false, vexatious and filed this suit solely with a view to obtain a relief, which is not entitled to on facts and under law.
20
O.S.No.6316/2009 In para 4 of the Written Statement, defendant No.2 submits that residential immovable property bearing Municipal No.3 of B.P. Wadia road, Basavanagudi road was the sole and absolute property of one C.M. Vijayaraghavachar purchased out of his own earnings without any aid of ancestral funds and as per the partition deed dated 1181945, late Vijayaraghavachar conveyed and transferred the above said property to his eldest son late C.M. Garudachar. Even though the document is styled as partition deed, but it was an effect of partitioncumsale as the property was valued at Rs.50,000/ and late C.M. Garudachar paid his two brothers sum of Rs.16,000/ for releasing their interest and share in the above said property.
The defendant No.2 submits that late C.M.Garudachar enjoyed the above said property as his sole and individual property, wherein none of his brothers have right, title and interest. The defendant 21 O.S.No.6316/2009 No.2 submits that late C.M. Garudachar was an efficient industrialist and business person engaged in the transportation of business. Said C.M. Garudachar had a girl child, who died in her infancy. The only surviving child, a son by name late C.M. Ramkumar, from very young age engaged himself in the business of his father who is a prime person for the success of business financially.
Further, 2nd defendant submits that plaintiff has no cause of action as plaintiff had no relationship with late C.M. Garudachar except being the daughter of his younger brother and had no claim of any kind in, over his properties i.e., plaint schedule properties. The suit schedule properties are all derived by late C.M. Garudachar and only late C.M. Ramkumar was the legal heir of C.M. Garudachar. Hence, suit filed by the plaintiff is liable to be dismissed in limine for want of cause of action. The 2nd defendant submits that even if the plaintiff is adopted daughter, though not 22 O.S.No.6316/2009 admitted, the suit is clearly barred by limitation and not maintainable. Late C.M.Garudachar of whom plaintiff claims to be adopted daughter died as early as on 1031951 and C.M. Ramkumar also died on 71 2008. For nearly 58 years, late C.M. Ramkumar was in ownership, possession and occupation, management and control of all his movable and immovable properties adversely and hostilely to the plaintiff's alleged rights therein. The plaintiff has not initiated any steps with regard to her alleged rights to the property for such a long period of time. Hence, the plaintiff forfeited her rights under the law of adverse possession and late C.M.Ramkumar has perfected his rights within the provision of law of adverse possession. However, the averments made at para 3 and 4 are accepted as true.
The 2nd defendant denied the averments made at para 5 to 11 as false and untrue. But in para 17 of the Written Statement the defendant No.2 admitted to 23 O.S.No.6316/2009 the extent of late C.M. Ramkumar and late Goda Devi had no issues and also admitted Goda Devi succumbed to lung cancer. But defendant No.2 submitted that even though late C.M.Ramkumar and late Goda Devi had no issues, they were living happily and peacefully. Rest of the averments made with regard to health condition of C.M.Ramkumar and his wife Goda Devi has been denied and not admitted by the 2nd defendant.
Further, defendant No.2 denied averments made at para 13 to 17 as false and untrue. In para 24, the defendant No.2 submits that late Goda Devi and late C.M.Ramkumar had executed valid Will with advise and assistance of their Chartered Accountant and said Will is valid and unenforceable by law and properties mentioned in the said Will have not yet reached the 2nd defendant, who is yet to receive his benefit of the Will executed by late C.M. Ramkumar and late Goda Devi. The rest of the averments made 24 O.S.No.6316/2009 at para 19 has been denied by the defendant No.2. However, defendant No.2 submits that he being a beneficiary of the Will has not yet received his legacy.
The defendant No.2 also denied all the averments made out at para 20 to 22 in the plaint as false and untrue and plaintiff would be put to strict proof of the same. In para 29, the defendant No.2, in his Written Statement submits that the cause of action as alleged in para 23 of the plaint is false, imaginary and vexatious, therefore requested the Court to dismiss the suit filed by the plaintiff in the interest of justice and equity.
5. The defendant No.3 filed Written Statement contending that suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Further, the defendant No.3 submits that plaintiff's claim against him is false, vexatious and filed this suit solely with a view to obtain a relief, which is not entitled to on facts and under law. 25
O.S.No.6316/2009 In para 4 of the Written Statement, defendant No.3 submits that residential immovable property bearing Municipal No.3 of B.P. Wadia road, Basavanagudi road was the sole and absolute property of one C.M. Vijayaraghavachar purchased out of his own earnings without any aid of ancestral funds and as per the partition deed dated 1181945, late C.M.Vijayaraghavachar conveyed and transferred the above said property to his eldest son late C.M. Garudachar. Even though the document is styled as partition deed, but it was an effect of partitioncum sale as the property was valued at Rs.50,000/ and late C.M. Garudachar paid his two brothers sum of Rs.16,000/ for releasing their interest and share in the above said property.
At para 5 of the Written Statement, the defendant No.3 submits that late C.M.Garudachar enjoyed the above said property as his sole and 26 O.S.No.6316/2009 individual property, wherein none of his brothers have right, title and interest.
At para 6 of the Written Statement,the defendant No.3 submits that late C.M. Garudachar was an efficient industrialist and business person engaged in the transportation of business.
At para 7 of the Written Statement, the Defendant No.3 submits that said C.M. Garudachar had a girl child, who died in her infancy. The only surviving child of C.M.Garudachar is a son by name late C.M. Ramkumar, who from very young age engaged himself in the business of his father who is a prime person for the success of business financially. Further, defendant No.3 submits that plaintiff has no cause of action as plaintiff had no relationship with late C.M. Garudachar except being the daughter of his younger brother and had no claim of any kind in, over his properties i.e., plaint schedule properties. The suit schedule properties are all derived by late C.M. 27 O.S.No.6316/2009 Garudachar and only late C.M. Ramkumar was the legal heir of C.M. Garudachar. Hence, suit filed by the plaintiff is liable to be dismissed in limine for want of cause of action.
At para 9 of the Written Statement, the defendant No.3 submits that even assuming that the plaintiff is adoptive daughter, though not admitted, the suit is clearly barred by limitation and not maintainable. Late C.M.Garudachar of whom plaintiff claims to be adopted daughter died as early as on 10 31951 and C.M. Ramkumar also died on 712008. For nearly 58 years, late C.M. Ramkumar was in ownership, possession and occupation, management and control of all his movable and immovable properties adversely and hostilely to the plaintiff's alleged rights therein. The plaintiff has not initiated any steps with regard to her alleged rights to the property for such a long period of time. Hence, the plaintiff forfeited her rights under the law of adverse 28 O.S.No.6316/2009 possession and late C.M.Ramkumar has perfected his rights within the provision of law of adverse possession. However, the Defendant No.3 admitted the averments made at para 3 and 4 as true. But the Defendant No.3 denied the averments made at para 5 to 11 as false and untrue.
In para 17 of the Written Statement, the defendant No.3 admitted to the extent of late C.M. Ramkumar and late Goda Devi had no issues and also admitted Goda Devi succumbed to lungs cancer. But defendant No.3 submitted that even though late C.M.Ramkumar and late Goda Devi had no issues, they were living happily and peacefully. Rest of the averments made with regard to health condition of C.M.Ramkumar and his wife Goda Devi has been denied and not admitted by the Defendant No.3. Further, defendant No.2 denied averments made at para 13 to 17 as false and untrue.
29
O.S.No.6316/2009 In para 24, the defendant No.3 submits that late Goda Devi and late C.M.Ramkumar had executed valid Will with advise and assistance of their Chartered Accountant and made the Defendant No.1 as custodian of the same to be handedover to Defendant No.3, after his death. Said Will is valid and enforceable by law and properties mentioned in the said Will have not yet reached the Defendant No.3, who is yet to receive his benefit of the Will executed by late C.M. Ramkumar and late Goda Devi.
At para 26 of the Written Statement, the Defendant No.3 denied the averments made at para 19 of the plaint that the Plaintiff is the absolute owner of suit schedule A & B properties and submits that various properties owned by late C.M.Ramkukmar are the absolute properties having an effect of self acquired properties as he inherited certain properties of his father late C.M.Garudachar who has monetarily compensated his brothers for acquisition and hence it 30 O.S.No.6316/2009 can be considered as the self acquired property of late C.M.Garudachar. Late C.M.Garudachar has no other natural or adopted children as alleged and Late Sri C.M.Ramkumar developed the property wisely investing in such a manner to fetch a good return and became the owner of suit schedule A, B and C properties and he along with his wife were having right of testamentary dispossession over the said properties. However, defendant No.3 submits that he being a beneficiary of the Will has not yet received his legacy. The defendant No.3 also denied all the averments made out at para 20 to 22 in the plaint as false and untrue.
In para 29 of his Written Statement, the defendant No.3 submits that the cause of action as alleged in para 23 of the plaint is false, imaginary and vexatious.
In para 32 of the Written Statement, the Defendant No.3 submits that the Plaintiff has filed this 31 O.S.No.6316/2009 suit with full clear knowledge of the falsity thereof, solely with a view to harass him. Therefore, the Defendant No.3 requested the Court to dismiss the suit filed by the plaintiff in the interest of justice and equity.
6. In this case, Defendants 4 to 11 are placed exparte by Order dt.17.11.2009.
7. On perusing the pleadings of the plaint and also written statement filed by the Defendants, my predecessor has framed the Issues on 6.11.2013, as follows:
1. Whether the Plaintiff proves that she is the adoptive daughter of late C.M.Garudachar ?
2. Whether the Plaintiff proves that Sri C.M.Ramkumar has purchased schedule A & B properties out of joint family assets and nucleus?
3. Whether the Plaintiff proves that schedule C property is the joint family property of C.M.Ramkumar ?
4. Whether the Defendants No.1 to 3 prove that Late Sri C.M.Ramkumar and late Godha Devi have bequeathed their properties by executing a Will?
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O.S.No.6316/2009
5. Whether the Defendants No.1 to 3 prove that Late Sri C.M.Ramkumar had perfected his right over the schedule property by way of adverse possession ?
6. Whether the suit is barred by limitation?
7. Whether the Plaintiff is entitled for the reliefs claimed?
8. What Order or Decree?
8. The plaintiff herself adduced her oral evidence by way of filing her sworn affidavit considered as PW1 and in further chief examination of PW1, the documents produced by her got marked as Ex.P1 to P18. In the cross examination of PW1, Ex.D1 and D2 are marked. In support of Plaintiff's case, one witness by name Sri K.R.Narasimha Iyengar is examined as PW2. No document is marked in further chiefexamination of PW2. On the other hand, in support of Defendants' case, one Sri K.V.Acharya, Chartered Account adduced his oral evidence by way of filing his sworn affidavit considered as DW1 and in further chief examination of DW1, the documents produced by him are got marked as Ex.D3 and Ex.D4 and Ex.D3(a) to D3(l). One 33 O.S.No.6316/2009 witness by name T.K.Venkataram is examined as DW2 and no documents are marked in further chiefexamination of DW2. One Sri T.K.Ramkumar S/o of DW2 is examined as DW3. One Sri R.C.Jagannath is examined as DW4. The Defendant No.2 is examined as DW5 and no documents are marked in further chiefexamination of DW5. The Defendant No.3 has adduced his evidence by way of filing Sworn Affidavit in lieu of chiefexamination, considered as DW6 and in no documents are marked in further chief examination of DW6 and closed by the side of the defendants. Heard oral argument on both side and perused the written arguments filed by both sides and then the case posted for judgment.
9. The findings of this Court on the above Issues are as follows: Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : In the Affirmative Issue No.5 : In the Negative 34 O.S.No.6316/2009 Issue No.6 : In the Affirmative Issue No.7: In the Negative Issue No.8:As per final order, for the following:
REASONS Issue No.1 :
10. The burden of proving this Issue lies on the plaintiff. Before analyzing the reasons for Issue No.1, it is just and proper to know the admitted facts in this case.
11. One Sri Vijayaraghavachar had 3 sons viz., Sri C.M.Narayan Iyengar, Sri C.M.Seetharam Iyengar and Sri C.M.Garudachar. The said three sons of Late Sri Vijayaraghavachar are no more. The Plaintiff is the natural daughter of Sri C.M.Seetharam Iyengar. The Defendants 4 to 15 are the daughters, sons and grand sons of Sri C.M.Narayan Iyengar and Sri C.M.Seetharam Iyengar. Here Defendant No.1 and 2 are the sister and brother of deceased Smt.Godadevi, and Defendant No.3 is the son of Defendant No.2.
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12. As per the pleadings of the plaint at para 5, it is pleaded that the Plaintiff being the natural daughter of Sri C.M. Seetharam Iyengar, was given in adoption to Sri C.M. Garudachar and she is the adoptive daughter of late C.M. Garudachar. In Order to prove that the Plaintiff is the adoptive daughter of late Sri C.M.Garudachar, it is just and proper to know the oral and documentary evidence by the side of Plaintiff. Here the Plaintiff filed her Sworn Affidavit in lieu of chiefexamination, considered as PW1 and in further chiefexamination of PW1 the documents produced by her are marked as Ex.P1 to P18. The contents of Sworn Affidavit filed by PW1 are nothing but repetition of the pleadings of the plaint, hence further explanation need not be required. In order to prove that PW1 is the adoptive daughter of late Sri C.M.Garudachar, she relied on Ex.P1 and Ex.P2. Ex.P1 is the Certificate issued by the Head Mistress, Smt.Kamala Bai High School, Queen's road, Bengaluru. Ex.P2 is the Study Certificate issued by the Head Mistress, Primary School, Mahila Seva Samaja, Bengaluru. 36
O.S.No.6316/2009 In both Ex.P1 and P2, it is mentioned that the Plaintiff Smt.Shantha is the daughter of late Sri C.M.Garudachar. But these two documents are not the conclusive proof for establishing the fact that the Plaintiff is the adoptive daughter of late Sri C.M.Garudachar. Because the Plaintiff ought to have examine the author of Ex.P1 and P2 and there must be corroborative evidence as to prove that late Sri C.M.Garudachar had gone to the above said institutions who issued Ex.P1 and P2 in order to prove that late Sri C.M.Garudachar himself given information about PW1 while getting admission for classIII. So here on perusal of Ex.P1, which has been issued on 2.7.2009 shows that the Plaintiff was a student in the year 193940 in classIII. Therefore the author of Ex.P1 and P2 ought to have been examined by the side of Plaintiff in order to prove that late Sri C.M.Garudachar himself gave information that the Plaintiff is his adoptive daughter. Except Ex.P1 and P2, the Plaintiff has not produced any relevant document as to prove that she is the adoptive daughter of late Sri 37 O.S.No.6316/2009 C.M.Garudachar. Here in the crossexamination of PW1 by the counsel for Defendant No.1 at page 15,the Pan Card which is marked as Ex.D1 and Passport which is marked as Ex.D2 confronted to Pw1. Here in Ex.D1, the father's name is mentioned as Seetharam Iyengar. On Ex.D2, the Passport, in the last page, the Father's name is mentioned as Seetharam Iyengar. So here in the crossexamination of PW1, she admitted that she herself obtained Ex.D1 and D2. PW1 also admitted that she herself furnished all information while obtaining Ex.D1 and D2. Further PW1 admitted that she has no document to show that she is the adoptive daughter of late Sri C.M.Garudachar. Therefore PW1 admitted that she is not having legally valid document to show that late Sri C.M.Garudachar, during his life time, adopted her. Therefore Ex.P1 and P2 are not relevant documents as conclusive proof as to prove that the Plaintiff is the adoptive daughter of Late Sri C.M.Ramkumar and his wife Smt.Goda Devi.
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13. PW1 in her crossexamination dt.6.6.2014 at page 13, deposed that late Sri C.M.Garudachar adopted her when she was aged about two years. She also deposed that she does not have personal knowledge with regard to performance of ceremonies at the time of adoption. Here how can PW1 depose that she was two yeas old when late Sri C.M.Garudachar took her by way of adoption but she does not able to depose the performance of ceremony held at the time of adoption. Here as pleaded in the plaint at para 7 late Sri C.M.Garudachar died on 10.3.1951. Here as per the version of PW1, late Sri C.M.Garudachar might have taken PW1 by way of adoption while she was aged about two years. Looking to Ex.P1, the date of birth of PW1 is mentioned as 12.1.1930. This goes to show that adoption of a female child prior to passing of Hindu Adoption and Maintenance Act,1956 was not legal. Prior to introduction of Hindu Adoption and Maintenance Act,1956, the adoption was confined only to a male child. Further under Hindu Law, the object of Adoption was twofold:(1) to secure the 39 O.S.No.6316/2009 performance of the funeral rites of the person to whom the adoption is made and (2) to preserve the continuance of his lineage. If a person, male or female was merely brought up by another person in his family, he cannot be equated that he/she was adopted by the family, in which he/she was brought up.
14. Here the Plaintiff is relied on Ex.P10 and P11 which are the certified copies of Sale Deeds where the name of Plaintiff is described as 'fostered' daughter of late Sri C.M.Garudachar. Mere relying on Ex.P1,Ex.P2, Ex.P10 and Ex.P11, the Plaintiff cannot claim that she is the adopted daughter of late Sri C.M.Garudachar, when C.M.Ramkumar was alive to perform the funeral rites of late Sri C.M.Garudachar and also to preserve the continuance of lineage of late Sri C.M.Garudachar, then what was the role of the Plaintiff to act as adopted daughter of late Sri C.M.Garudachar though there was no provision for adopting a female child prior to introduction of Hindu Adoption and Maintenance Act,1956. So here the Plaintiff is 40 O.S.No.6316/2009 neither adopted nor fostered daughter of late Sri C.M.Garudachar. This goes to show that only on the basis of Ex.P1, Ex.P2, Ex.P10 and Ex.P11, the Plaintiff is claiming that she is the adopted daughter of late Sri C.M.Garudachar.
15. Here the Plaintiff got adduced oral evidence of one witness i.e., PW2 by name Sri.K.R.Narasimha Iyengar who is the relative of late Sri C.M.Garudachar. The mother of PW2 is the sister of late Sri C.M.Garudachar. Here in the chiefexamination of PW2, he stated that late Sri C.M. Garudachar performed Dattaka Homa celebrations. At that time the parents of PW2 and other family members were present and PW2 had attended the said function. In para 3 of the Sworn Affidavit of PW2, reveals that late Sri C.M.Garudachar and his wife were sitting on the wooden platform which is called as 'Mane' and father and mother of Plaintiff lifted the Plaintiff and placed her on the lap of late Sri C.M.Garudachar and his wife, some priest chanted mantras and Homa was performed and then sugar was 41 O.S.No.6316/2009 distributed and later on food was arranged for establishing the said adoption function held. But here on perusing the crossexamination of PW2, he deposed that he is seven years older than the Plaintiff. At the time of adoption, he was aged about nine years. Here how could PW2 remembers those functions held at the time of adoption and deposing at the age of 94 years and how could the Court believe that at the age of 94 years this witness is adducing evidence by remembering all those functions held in the alleged adoption ceremony which might have held during the year 1940, as per his version . This goes to show that the evidence of this witness is a selfserving evidence. Now PW2 in his crossexamination deposed that in their community they follow Melukote customs. But PW2 failed to depose as to whether a system of adopting a female child, is prevailing in Melukote custom. So here from the crossexamination of PW2, it reveals that the Plaintiff has taken in adoption as per the Melukote custom prevailing in their community. But here looking to the pleadings of the 42 O.S.No.6316/2009 plaint and chiefexamination of PW1, it is not pleaded whether there was a custom prevailing in the community of Plaintiff and late Sri C.M.Garudachar for taking her as a adoptive daughter. So here when PW2 spoken about the custom, but there is no any pleadings pleaded with regard to prevalent system according to which the Plaintiff was taken as adopted daughter of late Sri C.M.Garudachar. So here the custom must be established by satisfactory evidence. But in this case the Plaintiff has not discharged by contending that she was taken in adoption by performing the customs prevailing in their community. It is also burden lies on the Plaintiff to prove that there was a prevalent custom according to which the female child was being adopted. But here the Plaintiff has not established that in those days she was taken as adopted daughter by late Sri C.M.Garudachar as per the custom prevailing i.e., local custom, caste custom and family custom. Therefore the entire evidence about the fact of adoption is not available in the oral evidence of PW1. On perusing the cross 43 O.S.No.6316/2009 examination of PW2, he deposed that Defendant No.10 is his wife who is sister of Plaintiff. Further PW2 also deposed that his wife Defendant No.10 is not contesting in this suit. The conduct with regard to veracity of evidence of PW2 reveals that he is deposing his evidence only to protect the interest of the Plaintiff without knowing anything about the affairs of family of adopted daughter of late Sri C.M.Garudachar. Here Ex.P1 and P2 which are school records produced by the Plaintiff, would not at all helpful to her as to prove that she is the adopted daughter of late Sri C.M.Garudachar. These documents i.e., Ex.P1 and P2 are relied on by the Plaintiff to establish that she has been treated as a daughter, are of no consequences as it has been observed and come to the conclusion that the alleged adoption as contended by the Plaintiff is not established and the Plaintiff failed to prove the same, because the adoption of female child was not permissible before passing of the Hindu Adoption and Maintenance Act,1956. Therefore the documents relied on by the Plaintiff would 44 O.S.No.6316/2009 not support her case that her adoption was valid in the eye of law.
16. Here counsel for the Plaintiff relied on the reported decision reported in (2018)9 SCC 663 and AIR 1974 SC 2161, wherein at para 6 of the Judgment, the Hon'ble Supreme Court of India held that though factum of adoption and its validity has to be proved and formal ceremony of giving and taking is an essential ingredient for a valid adoption, long duration of time during which a person is treated as adopted cannot be ignored and by itself, may in the circumstances carry a presumption in favour of adoption. But here in the pleadings of the plaint it is not pleaded what are the customs which were prevalent in the community of late Sri C.M.Garudachar under which the Plaintiff was taken as adopted daughter of late Sri C.M.Garudachar. In the crossexamination of PW1 there are so many contradictions as she herself deposed that there are no valid legal documents to show that she is adopted daughter of late Sri C.M.Garudachar. Ex.D1 and Ex.D2 45 O.S.No.6316/2009 which are produced and confronted in the cross examination of PW1 goes to show that she has never been taken as adopted daughter of late Sri C.M.Garudachar and there were no legal transactions held in between late Sri C.M.Garudachar and Plaintiff with regard to family affairs since the death of late Sri C.M.Garudachar in order to establish the fact that the Plaintiff has been actively participated in the family affairs of late Sri C.M.Garudachar as to establish the fact that she is the adopted daughter of late Sri C.M.Garudachar. Therefore the observations made in the above reported citations would not at all applicable looking to the facts and circumstances and evidence of PW1 in this case.
17. Further in this case Dws.5 and 6 who are Defendants 2 and 3, in their crossexamination, have not at all admitted the suggestion suggested by the counsel for the Plaintiff that the Plaintiff is the adopted daughter of late Sri C.M.Garudachar. If the Plaintiff proved relying on the oral evidence of Pws.1 and 2 that she is adopted daughter of 46 O.S.No.6316/2009 late Sri C.M.Garudachar, then the onus of disproving the said fact shifts on the Defendants 1 to 3. But here the Court has already come to the conclusion that the Plaintiff utterly failed to prove that she is adopted daughter of late Sri C.M.Garudachar. But in the crossexamination of Dws.5 and 6 they have not at all admitted that the Plaintiff is the adopted daughter of late Sri C.M.Garudachar. Hence the answered Issue No.1 in the Negative.
Issue Nos.2 and 3:
18. Here in the pleadings of the plaint at para 8, it is pleaded that there was a partition held in between the sons of Sri Vijaya Raghavachar as per Partition Deed dt..11.8.1945. In the said partition property No.3, B.P.Wadia road, Bengaluru was allotted to late Sri C.M.Garudachar and after his death said property has been allowed to be developed by Late Sri C.M.Ramkumar and siad Late Sri C.M.Ramkumar got one apartment and sold the same during his life time. The property bearing No. 7/43, 3rd Main road, Jayanagar, 7th block, Bengaluru, which 47 O.S.No.6316/2009 is suit schedule 'A' property was purchased by Late Sri C.M.Ramkumar out of joint family funds. At para 9, it is also pleaded that out of the joint family assets, Late Sri C.M.Ramkumar purchased a property consisting of Farm land and cottage at Jain Farms, Bagalur village, which is not an agricultural land. That property is described in schedule 'B' of the plaint. So also in para 10 of the plaint it is pleaded that late Sri C.M.Garudachar had substantial movables of the joint family and those movables are described in schedule 'C' of the plaint. Therefore, it is the contention of the Plaintiff that the schedule A to C properties are the joint family properties and she had half share in the said properties as she is the adopted daughter of late Sri C.M.Garudachar.
19. Here in order to prove Issue Nos.2 and 3, it is just and proper to know the oral and documentary evidence by the side of Plaintiff. In the crossexamination of PW1 she deposed and admitted that there was a partition held in between late Sri Vijayaraghavachar with his sons Sri 48 O.S.No.6316/2009 C.M.Narayan Iyengar, Sri C.M.Seetharam Iyengar and Sri C.M.Garudachar under Partition Deed dt.10.8.1945 as per Ex.P4, the translation copy of the same is marked as Ex.P4(a). As admitted in the crossexamination of PW1 at page 16, she deposed that at the time of partition, property No.3 of B.P.Wadia road, Bengaluru has fallen to the share of late Sri C.M.Garudachar and he paid Rs.16,000/ each to his brothers. So the said property was purchased out of his own earning by late Sri Vijayaraghavachar without the aid of ancestral nucleus and he decided to give the said property to late Sri C.M.Garudachar in its entirety and his other two children Seetharam Iyengar and Narayana Iyengar received amount of Rs.16,000/ each in lieu of their share in the said property. This goes to show that said Partition Deed dt.10.8.1945 as per Ex.P4 is a partition cumsale deed. So it is exclusive property of late Sri C.M.Garudachar. As admitted in the crossexamination of PW1, late Sri C.M.Garudachar was a rich person carrying private transport business, which was vested to the 49 O.S.No.6316/2009 Government as per Government Order. Then said late Sri C.M.Garudachar obtained compensation. Here Late Sri C.M.Ramkumar who is industrious, carried out the business which was being carried by late Sri C.M.Garudachar out of his own earning and also profit earned in the business. Thus Late Sri C.M.Ramkumar purchased suit schedule A & B properties, but not out of joint family nucleus.
20. Here PW1 relied on Ex.P4 and P5, which are the certified copies of Sale Deeds executed in the name of Plaintiff, but PW1 in her crossexamination deposed that she does not know how much amount she paid to Late Sri C.M.Ramkumar from the sale of land as well as jewels as per Ex.P5 and P6. So here in the crossexamination of PW1, she utterly failed to depose what was the loan existed at the hands of late Sri C.M.Garudachar. This goes to show that there was no any debt left by late Sri C.M.Garudachar at the time of his death. Because Late Sri C.M.Ramkumar who is the only son of late Sri C.M.Garudachar was assisting in the business of his fathe being carried by him. Therefore there 50 O.S.No.6316/2009 was no debt existed to the family of late Sri C.M.Garudachar. So here Late Sri C.M.Ramkumar purchased the property after the death of his father late Sri C.M.Garudachar, out of the compensation given to him by the Government after the transport business which was carried by him was nationalized. Therefore out of that compensation amount, Late Sri C.M.Ramkumar purchased the suit schedule property. Here Late Sri C.M.Ramkumar also sold out Northern portion of the property as per Ex.P9.
The property No.3 was given to late Sri C.M.Garudachar as per Ex.P4 which is self acquired property of late Sri C.M.Garudachar. Thereafter Late Sri C.M.Ramkumar acquired the suit schedule A & B properties out of his own earning and also out of profit accrued by running his business. Late Sri C.M.Ramkumar is an industrious person and he was running the Western India Plywood Limited Firm. Here in the crossexamination of PW1 by the counsel for Defendant No.1 dt.16.10.2010, she deposed that as per agreement entered by Late Sri C.M.Ramkumar with one 51 O.S.No.6316/2009 Ramachandra as per Ex.P9, she executed sale agreement. But PW1 failed to depose the receipt of sale consideration by cash or by way of apartment as an agreement holder. This goes to show that Late Sri C.M.Ramkumar has received substantial consideration by executing sale agreement as per Ex.P9 and also by way of getting the apartment. Further in the Written Statement filed by Defendants 1 to 3, it is contended that the suit schedule properties are self acquired properties of Late Sri C.M.Ramkumar. So from the oral evidence of PW1 and admissions, itself sufficient that suit schedule A & B properties are self acquired properties of Late Sri C.M.Ramkumar. Here Late Sri C.M.Ramkumar during his life time earned movable properties by way of National Savings Certificate and Postal Savings scheme, also by investing money in UTI Unit Growth Scheme and also tax savings and mutual funds and also Monthly income plan. So here Late Sri C.M.Ramkumar is also having deposit amount in the banks and post office. Thus the suit 52 O.S.No.6316/2009 schedule properties are the self acquired properties of Late Sri C.M.Ramkumar .
21. Here the counsel for the Plaintiff in the written arguments at para 22 stated that whether the properties are ancestral or self acquired properties by Late Sri C.M.Ramkumar would be relevant only if Will is proved by Defendants 1 to 3. But here the Plaintiff should prove her case standing on the strength of her own legs, but not relying on the evidence of witnesses on the Defendants's side. Because the Plaintiff took contention that the suit schedule properties are ancestral and joint family properties of herself and Late Sri C.M.Ramkumar. But here looking to the crossexamination of PW1 and sale transaction in between Late Sri C.M.Ramkumar with third parties, goes to show that suit schedule A to C properties are self acquired properties of Late Sri C.M.Ramkumar and suit schedule A & B properties have been purchased by Late Sri C.M.Ramkumar out of his own income and profit accrued by running the Western India Plywood Limited Firm. 53
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22. Here Defendant Nos.2 and 3 adduced their oral evidence as DW5 and DW6. In the crossexamination of DW5, he deposed about the suggestions suggested that the Plaintiff herself discharged the loan made by late Sri C.M.Garudachar during his life time, whereas in the cross examination of PW1, she deposed that there was no debt existed at the time of death of late Sri C.M.Garudachar. Under these circumstances where is the question arises for discharging the loan made by late Sri C.M.Garudachar by the Plaintiff. So here the Plaintiff utterly failed to prove Issue Nos.2 and 3. Accordingly the Court answered Issue Nos.2 and 3 in the Negative.
Issue No.4:
23. In the Written Statement filed by Defendant No.1 at para 29, he pleaded that Late Sri C.M.Ramkumar and Smt.Goda Devi who is wife of Late Sri C.M.Ramkumar have executed joint Will dt.3.11.2000 on the advice and assistance of Chartered Accountant and said Will is valid and enforceable and the said Will is the last Will and 54 O.S.No.6316/2009 testamentary. Accordingly the suit schedule properties are bequeathed in favour of Defendants 1 to 3 and since then Defendants 1 to 3 are in possession of suit schedule properties. In th Written Statement, Defendants 1 to 3 pleaded that Smt.Goda Devi and Late Sri C.M.Ramkumar executed Will on the advice of their C.A. and said Will is valid and enforceable by law. So here it is the burden lies on the Defendants 1 to 3 to prove the said Will dt.3.11.2000.
24. In order to prove Issue No.4, the Chartered Accountant by name Sri K.V.Achar adduced his oral evidence as DW1. DW1 is the scribe of Ex.D3 which is the unregistered Will. In further chiefexamination of DW1 he identified the signature of Late Sri C.M.Ramkumar marked as Ex.D3(a) to D3(e) and signature of Smt.Goda Devi who is wife of Late Sri C.M.Ramkumar at Ex.D3(f) to D3(j). One T.K.Venkatram and R.C.Jagannath have put their signatures on Ex.D3 as attesting witnesses. DW1 identified the signature of attesting witnesses T.K.Venkatram and 55 O.S.No.6316/2009 R.C.Jagannath marked as Ex.D3(k) and D3(l). Here it is the contention of the Plaintiff that Ex.D3 is concocted and created document and prepared at the instance of Defendant No.1. On perusing the crossexamination of DW1, goes to show that the Defendant No.1 used to accompany Late Sri C.M.Ramkumar and his wife Smt.Goda Devi for the office of DW1. So Late Sri C.M.Ramkumar and Smt.Goda Devi voluntarily came to the office of DW1 and gave information for writing the unregistered Will as per Ex.D3, to DW1. Therefore DW1 in his crossexamination deposed that suit schedule A to C properties are the self acquired properties of Late Sri C.M.Ramkumar. DW1 in his crossexamination deposed that he cannot say whether Late Sri C.M.Ramkumar is mentioning the suit schedule properties as joint family properties or self acquired properties while submitting I.T.return to the I.T.department. But here DW1 deposed unless verifying the records, he cannot say whether Late Sri C.M.Ramkumar used to show the suit schedule properties as joint family 56 O.S.No.6316/2009 properties or self acquired properties while submitting I.T.return to the I.T.department.
25. Here in the crossexamination of DW1, he admitted that Defendant No.1 is the sister of Smt.Goda Devi who is the wife of Late Sri C.M.Ramkumar. He also admitted that said Late Sri C.M.Ramkumar and Smt.Goda Devi had no issues. Further DW1 deposed that Late Sri C.M.Ramkumar and Smt.Goda Devi used to follow the advice given by Defendant No.1. But the Plaintiff cannot rely on the version adduced by DW1 would not at all helpful as to prove that Ex.D3 is prepared by DW1 with undue influence of Defendant No.1. Here in the cross examination of DW1, he deposed that on the day of executing the unregistered Will as per Ex.D3, Late Sri C.M.Ramkumar and his wife Smt.Goda Devi were only present and Defendant No.1 was not at all accompanied with them to the office of DW1. From the crossexamination of DW1, it is proved that said unregistered Will, after executed by Late Sri C.M.Ramkumar and his wife 57 O.S.No.6316/2009 Smt.Goda Devi was left in the office of DW1 and DW1 had kept it in his office in a cover. Ex.D4 is the cover in which Ex.D3 was kept by DW1 in his office. This goes to show that DW1 is well familiarized with Late Sri C.M.Ramkumar and his wife Smt.Goda Devi since so many years as DW1 is the Chartered Accountant and he used to look after the assets andliabilities of business of the Late Sri C.M.Ramkumar for filing the I.T.return to the I.T.department and DW1 is the wellwisher of the Late Sri C.M.Ramkumar and Smt.Goda Devi. Therefore though the scribe is not a witness, but the evidence of DW1 would helpful to the extent that he knew all the family affairs of Late Sri C.M.Ramkumar and Smt.Goda Devi. Therefore in the crossexamination of DW1, he deposed that Late Sri C.M.Ramkumar and Smt.Goda Devi were not having any issues and Smt.Goda Devi was suffering from Lungs cancer.
26. Here in order to prove genuiness and validity of the Will, Defendants 1 to 3 have to prove the said Will as per Ex.D3 under Sec.68 of the Indian Evidence Act, 1972 58 O.S.No.6316/2009 and also under Sec.63(c) of the Indian Succession Act, 1925. Here DW2 by name T.Venkataram who is attesting witness for Ex.D3, adduced his oral evidence by way of filing his Sworn Affidavit considered as DW2. DW2 in his chiefexamination deposed that as per the instructions of Late Sri C.M.Ramkumar and Smt.Goda Devi, DW1 prepared the joint Will as per Ex.D3. DW2 is a retired person and employed in the office of DW1. He deposed that Late Sri C.M.Ramkumar and Smt.Goda Devi on 3.11.2000 came to the office of DW1. At that time himself and DW4 were present in the office of DW1. While giving instructions for writing the contents of Ex.D3, Late Sri C.M.Ramkumar and Smt.Goda Devi were in sound state of disposition of mind. They voluntarily gave the information for writing the contents of Ex.D3 to DW1. Accordingly DW1 prepared Ex.D3. Then DW2 and DW4 put their signatures as attesting witnesses on Ex.D3. But here DW2 was not crossexamined, because he was not able to answer the questions being put by counsel for the Plaintiff as he was suffering from 59 O.S.No.6316/2009 deficiency in hearing. Then I.A.No.20 under Order 26 Rule 1 and 4A of C.P.C. was filed seeking permission for appointing a Court Commissioner to record the cross examination of DW2. Said I.A.No.20 was rejected by Order dt.23.10.2013. Then W.P.Nos.50530/2017 and 50531/2017 were filed before the Hon'ble High Court of Karnataka being aggrieved by the Order passed in I.A.No.20 dt.23.10.2013. As per the Order passed in said Writ Petitions, it is permitted the Defendants' side to lead evidence. In the meanwhile the counsel for Defendant No.1 filed a Memo dt.27.6.2019 enclosing Death Certificate stating that DW2 T.K.Venkatram who is attesting witness to Ex.D3 reported to be dead. Then the son of DW2 by name T.K.Ramkumar adduced his oral evidence as DW3. DW3 only identified the signature of his father DW2 T.K.Venkatram on Ex.D3 which is marked as Ex.D3(k). So here the evidence of DW3 is only helpful to identify the signature of his father which is marked as Ex.D3(k). 60
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27. Here DW4 who is also attesting witness for Ex.D3, adduced his oral evidence by way of filing his Sworn Affidavit in lieu of chiefexamination, which is not testified by way crossexamination. DW4 in his chiefexamination stated that he is not able to recollect the document, nor any details of the circumstances surrounding the execution of Ex.D3. However in further chiefexamination of DW4, he identified his signature on Ex.D3 marked as Ex.D3(l). On perusing the crossexamination of DW4, he deposed that before joining the office of Chartered Accountant belongs to DW1, he was working in Vijaya bank and he retired in the year December, 2000 and joined the office of DW1 in the year 2002. Prior to joining the office of DW1, DW4 used to visit the office of DW1, as DW1 is well known to him. Therefore in the crossexamination of DW4, goes to show that he voluntarily put signature on Ex.D3, but not at the instructions of DW1. In the crossexamination of DW4, he admitted that Smt.Goda Devi and Late Sri C.M.Ramkumar were suffering from ailment, but not from prolonged illness. 61
O.S.No.6316/2009 DW4 in his evidence deposed that Late Sri C.M.Ramkumar and Smt.Goda Devi together used to come to the office of DW1. So DW4 is well known about the contents of Ex.D3, because he used to read any document and then signed by him under the instructions of DW1. So here from the cross examination of DW3, he identified signature of his father DW2 and DW4, but also identified his signature on Ex.D3. DW4 is well known the contents of Ex.D3 through DW1. Thus it is sufficient that as per Sec.68 of the Indian Evidence Act, 1972, one of the attesting witnesses i.e., DW4 has been called for the purpose of proving the execution of Ex.D3. Here the counsel for the Plaintiff relied on the reported decision in AIR 2003 SC 761, wherein it is held that Will cannot be proved by the scribe and one of the attesting witness can prove the Will. Here the evidence of DW4 is sufficient to prove the due execution of the Will made by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi. The DW4 is prudent and educated witness. His 62 O.S.No.6316/2009 evidence cannot be discarded for determining due execution of Will i.e., Ex.D3.
28. Now at this juncture it is pertinent to know whether Late Sri C.M.Ramkumar and his wife Smt.Goda Devi had any intention to execute the Will as per Ex.D3. In the oral evidence of PW1 dt.16.10.2014 page 19, she admitted that a sum of Rs.5 lakh each has been paid to her sons i.e., Sriram, Srikant and Sridhar as mentioned in the Will executed by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi. So this admission in the crossexamination of DW1 regarding execution of the Will as per Ex.D3 reveals that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi with an intention to execute the Will in favour of Defendants 1 to 3 executed unregistered Will as per Ex.D3. Here the Plaintiff has not produced other signature of DW2 in order to prove that the signature of DW2 which is marked on Ex.D3 as Ex.D3(k) through DW3 is not genuine signature of DW2. The evidence of DW2 is not testified by way of crossexamination, as he died before subjecting for 63 O.S.No.6316/2009 crossexamination. Therefore there is no contrary evidence to disprove the signature of DW2 by the side of Plaintiff. Here in the written arguments filed by the Plaintiff at para 32, it is admitted that the evidence of DW1 and DW4 corroborate the fact that DW4 affixed his signature on Ex.D3 only during his employment with DW1. So here in the crossexamination of DW4, goes to show that before 2002 he used to visit the office of DW1, who is the well known friend of him. This goes to show that DW4 was well known to Late Sri C.M.Ramkumar and his wife Smt.Goda Devi prior to his retirement as he used to visit the office of DW1. Therefore there is no suspicious circumstances while executing Ex.D3 by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi. Further the Plaintiff has not at all disputed the signatures of Late Sri C.M.Ramkumar and his wife Smt.Goda Devi who put their signatures on each page of Ex.D3. Therefore the attestation of Will as required u/s 68 of the Indian Evidence Act, 1972 and also u/s 63 of Indian Succession Act, 1925 is satisfied.
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29. Here admittedly Smt.Goda Devi was suffering from Cancer and she died in the year 2001. Late Sri C.M.Ramkumar died in the year 2008 who was hale and healthy while executing the unregistered Will as per Ex.D3 in the year 2000. So here Smt.Goda Devi died in the year 2001 after execution of Will in the year 2000 as per Ex.D3. So here no medical document is produced by the Plaintiff as alleged that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi were not in sound state of mind. So here admittedly in the crossexamination of PW1, she deposed that the Defendant No.1 was looking after the care and welfare of Late Sri C.M.Ramkumar and his wife Smt.Goda Devi. So here Late Sri C.M.Ramkumar is a prudent person and well known business man and having a worldly knowledge. Then how can Late Sri C.M.Ramkumar was under the influence of Defendant No.1 while executing the unregistered Will as per Ex.D3. So here it is burden lies on the Plaintiff as to prove that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi were not in sound disposing state of 65 O.S.No.6316/2009 mind and healthy. From the crossexamination of PW1, goes to show that Defendants 6 to 15 are the siblings of brothers of late Sri C.M.Garudachar. More fully, Defendant No.6 is the own sister of Plaintiff. Then why the Plaintiff has not get adduced evidence of any of the Defendants to prove the fact that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi were not in sound disposing state of mind and healthy. Therefore from the evidence of DW1 and DW4, it is proved that Will is executed by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi while they were in sound state of mind and healthy. Therefore the observation made in the above said reported decision is not applicable to the case on hand. In the evidence of DW1 and DW4, it is proved that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi came to the office of DW1 when they were in sound state of mind and healthy. Therefore the Defendants 1 to 3 discharged and removed the suspicious circumstances raised by the Plaintiff. 66
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30. Here the Defendant No.2, who filed independent Written Statement also adduced his oral evidence as DW5 by way of filing his Sworn Affidavit. On perusing the crossexamination of DW5, he categorically denied the suggestion suggested by the counsel for the Plaintiff that the Plaintiff is adopted daughter of late Sri C.M.Garudachar. Further in the crossexamination of DW5, he deposed that he does not know other immovable properties stood in the name of late Sri C.M.Garudachar at the time of his death except the properties mentioned on Ex.D3. Here in the crossexamination of DW5, he deposed that Late Sri C.M.Ramkumar was a business man and running a Plywood factory. So here in the cross examination of DW5, he also deposed that Smt.Goda Devi was suffering from Cancer since six months prior to her death, but Late Sri C.M.Ramkumar was healthy. This goes to show that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi voluntarily with intention to execute the Will came to the office of DW1 who is the wellwisher of the 67 O.S.No.6316/2009 family of Late Sri C.M.Ramkumar. Further DW5 deposed that himself and Defendant No.1 and one nurse were looking after the care and welfare of Smt.Goda Devi. Here in the crossexamination of DW5, deposed that DW1 used to audit the business being carried by Late Sri C.M.Ramkumar. Therefore from the crossexamination of DW5, it goes to show that the suit schedule properties are the self acquired properties of Late Sri C.M.Ramkumar. From the crossexamination of DW5, goes to show that he came to know the existence of the Will only after DW1 informed him after 2 or 3 days of death of Late Sri C.M.Ramkumar. So therefore from the evidence of DW5 goes to show that there is no any undue influence made by Defendant No.1 while executing the unregistered Will as per Ex.D3 by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi. Here DW6 who is Defendant No.3 and beneficiary under the Will which is marked as Ex.D3 , has adduced his oral evidence by way of filing his Sworn Affidavit. Here in the chiefexamination of DW6, he also 68 O.S.No.6316/2009 deposed that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi were living happily though they had no issues and they were having sound state of mind. Further Late Sri C.M.Ramkumar was a successful business man and earned his income from the business. But here in the cross examination of DW6, goes to show that the Defendants 1 and 2 were looking after the care and welfare of Late Sri C.M.Ramkumar and his wife Smt.Goda Devi. Here DW6 came to know about the existence of the Will only on the information of his father. Therefore from the evidence of DW6 also it reveals that Late Sri C.M.Ramkumar and his wife Smt.Goda Devi executed the unregistered Will as per Ex.D3 while they were in sound state of mind and healthy. Here in the written argument at para 43, it is the contention of the Plaintiff that Will as per Ex.D3 has never acted upon even after lapse of several years and the alleged executor of Will has not obtained any probate of the Will. But here the Plaintiff is neither adoptive nor fostered daughter of late Sri C.M.Garudachar and even the Plaintiff cannot claim her 69 O.S.No.6316/2009 right as she has come under the Agnate class through male or female relations, because the Plaintiff is claiming her share stating that the suit schedule properties are the ancestral properties of late Sri C.M.Garudachar. But here admittedly as per Ex.P4, which is the Partition Deed through which late Sri C.M.Garudachar was allotted his share,but late Sri C.M.Garudachar has paid Rs.16,000/ to each of his brothers. Therefore Ex.P4 is partitioncumsale deed. Hence under these circumstances whatever the share allotted to late Sri C.M.Garudachar in the year 1945 as per Ex.P4 is the self acquired property belongs to him. Then after death of late Sri C.M.Garudachar in the year 1952, his only son Late Sri C.M.Ramkumar being a prudent man, developed the business and purchased the suit schedule properties. Therefore all the suit schedule properties are the self acquired properties of Late Sri C.M.Ramkumar. Under these circumstances the Plaintiff cannot claim her right and cannot dispute the Will executed by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi as per Ex.D3. 70
O.S.No.6316/2009 Hence Defendants 1 to 3 proved the Will executed by Late Sri C.M.Ramkumar and his wife Smt.Goda Devi in favour of them as per Ex.D3. Hence the Court answered Issue No. 4 in the Affirmative.
Issue No.5:
31. The Defendants 1 to 3 in their respective Written Statements took contention that Late Sri C.M.Ramkumar has perfected his right over the suit schedule property by way of adverse possession. Therefore the Plaintiff has not initiated any step with regard to her alleged right to the property for such a long period of time and has forfeited her rights under the law of adverse possession.
32. Here there is no any unequivocal evidence in the oral evidence led by Dws.5 and 6, as to prove adverse possession. The Court has already come to the conclusion that the Plaintiff is not the real owner of the suit schedule properties. Further the suit schedule properties are the self acquired properties of Late Sri C.M.Ramkumar. In this case 71 O.S.No.6316/2009 in the oral evidence led by DW5 and DW6 they have not stated that possession of Late Sri C.M.Ramkumar was hostile or adverse to the interest of Plaintiff. So therefore there is no any hostile animus by the side of Late Sri C.M.Ramkumar with regard to the suit schedule properties. Here Late Sri C.M.Ramkumar is only legal representative of late Sri C.M.Garudachar. Late Sri C.M.Garudachar has no other children except Late Sri C.M.Ramkumar. Therefore the question of adopting the Plaintiff as daughter does not arise for consideration. Here the Plaintiff is neither adoptive nor fostered daughter of late Sri C.M.Garudachar. Therefore the Plaintiff has no any right over the suit schedule properties and since the death of late Sri C.M.Garudachar, the Plaintiff has not exercised her legal right in the family affairs of Late Sri C.M.Ramkumar in order to prove that she is the adoptive daughter of late Sri C.M.Garudachar. Therefore the Plaintiff is not at all the owner of suit schedule properties and question of establishing the hostile animus by Late Sri C.M.Ramkumar against the Plaintiff in 72 O.S.No.6316/2009 respect of suit schedule properties does not arise for consideration. Therefore Defendants 1 to 3 utterly failed to prove Issue No.5. Accordingly the Court answered Issue No.5 in the Negative.
Issue No.6:
33. Here late Sri C.M.Garudachar died in the year 1951. Since the death of late Sri C.M.Garudachar during his life time, the Plaintiff has not at all claimed her share in the suit schedule properties and not demanded Late Sri C.M.Ramkumar for her share in the suit schedule properties. So here the Plaintiff is neither the coowner nor cosharer along with Late Sri C.M.Ramkumar in order to claim her share in the suit schedule properties. Here under Article 110 of the Limitation Act, 12 years is prescribed for filing of suit by the person who is excluded from the joint family to raise a right to share. In this case the Plaintiff has not at all demanded or claimed her share since the year of death of late Sri C.M.Garudachar in the year 1951. Further even during the life time of Late Sri C.M.Ramkumar, the 73 O.S.No.6316/2009 Plaintiff has not at all filed a partition suit in order to claim her share in the suit schedule properties. So therefore the Defendants 1 to 3 proved that the Plaintiff knew that she had no any right over the suit schedule properties. Hence the suit filed by the Plaintiff for more that 12 years after the death of late Sri C.M.Garudachar, is barred to claim the share in the suit schedule properties under Section 110 of the Limitation Act. Here the cause of action has arose for filing of this suit for the Plaintiff for claiming her share in the suit schedule properties soon after the death of late Sri C.M.Garudachar. Because the Plaintiff is claiming her share in the suit schedule properties contending that she is the adoptive daughter of late Sri C.M.Garudachar. Therefore the suit filed by the Plaintiff is barred under limitation. Accordingly the Court answered Issue No.6 in the Affirmative.
Issue No.7:
34. Here the Plaintiff utterly failed to prove that she is the adoptive or fostered daughter of late Sri 74 O.S.No.6316/2009 C.M.Garudachar. On the other hand the Defendants 1 to 3 proved that during the life time of Late Sri C.M.Ramkumar and his wife Smt.Goda Devi while they were in sound disposing state of mind and healthy, they executed unregistered Will in favour of Defendants 1 to 3 as per Ex.D3. Further the Plaintiff also failed to prove that the suit schedule properties are the joint family properties of herself and Late Sri C.M.Ramkumar. The Plaintiff is also not having a right over the suit schedule properties on the strength of the documents produced by her. Therefore the Plaintiff is not entitled to any relief as prayed for. Accordingly Issue No.7 is answered in the Negative.
Issue No.8:
35. In view of forgoing observations made in all the above Issues, this Court proceeds to pass the following:
ORDER Suit filed by the Plaintiff against the Defendants is hereby dismissed.
Parties are directed to bear their own costs. 75
O.S.No.6316/2009 Draw decree accordingly.
(Dictated to the Judgment Writer, corrected, signed and then pronounced by me in the open Court on this the 28 th Day of January, 2021) (Devanand P.Nayak) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 Shantha
P.W.2 K.R.Narasimha Iyengar
2. List of documents exhibited for plaintiff :
Ex.P1 Certificate issued by school
Ex.P2 Certificate issued by school
Ex.P.3 Death certificate of Late Sri
C.M.Ramkumar
Ex.P.4 Certified copy of Partition Deed
dt.1.8.1945
Ex.P.4(a) Typed copy of Ex.P4
Ex.P.5 Certified copy of Sale Deed dated
26.2.1953
Ex.P.6 Certified copy of Sale Deed dated
76
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26.2.1953
Ex.P.6(a) Typed copy of Ex.P6
Ex.P.7 Encumbrance Certificate
Ex.P.8 Certified copy of Sale Deed dt.1.2.1979
Ex.P.9 General Power of Attorney executed by
Late Sri C.M.Ramkumar in favour of
M.Ramachandra dt.20.11.1993
Ex.P10 Certified copy of Sale Deed dt.26.2.1953
Ex.P10(a) Typed copy of Ex.P10
Ex.P11 Certified copy of Sale Deed dt.10.3.1993
Ex.P11(a) Typed copy of Ex.P11
Ex.P12 Letter written by son of PW1 to the
Manager of HDFC Mutual Fund
Ex.P13 to Certified copy of Certificates issued by
Ex.P18 HDFC Mutual Fund
3. List of witnesses examined for defendants:
DW1 K.V.Acharya DW2 T.K.Venkataram DW3 T.K.Ramkumar DW4 R.C.Jagannath DW5 S.G.Vasudev DW6 Mr.Barani V.Setlur
4. List of documents exhibited for defendant:
Ex.D1 PAN card of PW1 (marked in the cross examination of PW1) Ex.D2 Passport of PW1 (marked in the cross examination of PW1) Ex.D3 Will executed by Late Sri C.M.Ramkumar and Smt.Goda Devi 77 O.S.No.6316/2009 Ex.D3(a) signatures of Late Sri C.M.Ramkumar to Ex.D3(e) Ex.D3(f) to signatures of late Smt.Goda Devi Ex.D3(j) signature of T.K.Venkatram(witness to Ex.D3(k) Ex.D3) Ex.D3(l) signature of witness R.C.Jagannath Ex.D4 Cover in which Will was kept (Devanand Puttappa Nayak) XXXVIII Additional City Civil & Sessions Judge,Bangalore City. 78 O.S.No.6316/2009