Bangalore District Court
Sathyalakshmi G vs Viswanath G on 7 December, 2024
KABC010132732012
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. B.DASARATHA., B.A., LL.B.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 7th DAY OF DECEMBER, 2024
O.S.No.1426/2012
Plaintiffs: 1. Smt. G.Sathyalakshmi,
W/o. O.K.Venkataraman,
Aged about 74 years,
R/at Flat No.305, 'C' Block,
Purva Heights Apartments,
Bilekahalli, Bannerghatta Road,
Bengaluru - 560 076.
2. Smt. Radha Samprati,
W/o. S.Murali Mohan,
Aged about 70 years,
R/at Flat No.B-704,
Century Central Apartments,
Kanakapura Road,
Bengaluru - 560 062.
(By Adv. Sri.A.Madhusudhana Rao)
2 O.S.No.1426/2012
Vs.
Defendants: 1. Sri. G.Viswanath,
S/o. Late G.Gopala Rao,
Aged about 60 years,
R/at No.9, 37th Cross,
8th Block, Jayanagara,
Bengaluru - 560 082.
2. Sri. G.Murali Rajendra,
S/o. Late G.Gopala Rao,
Aged about 52 years,
R/at No.9, 37th Cross,
8th Block, Jayanagara,
Bengaluru - 560 082.
3. Dr. Ramadevi,
W/o. K.Sachidanandamurthy,
Aged about 55 years,
R/at No.1381, Krishnakamala,
9th Cross, Ashok Nagar,
Banashankari 1st Stage,
Bengaluru.
4. Smt. Jayanthi G.Vishwanath,
W/o. Sri.G.Viswanath,
Major,
R/at No.9, 37th Cross Road,
8th Block, Jayanagara,
Bengaluru - 560 082.
5. Smt. Roopa Rajendra,
W/o. Murali Rajendra,
Major,
R/at No.9, 37th Cross,
8th Block, Jayanagara,
Bengaluru - 560 082.
3 O.S.No.1426/2012
(D1 & D4 - In Person
D2 & D5 by Adv. Sri.B.G.Sriram
D3 - Exparte)
Date of institution of the suit : 17.02.2012
Nature of the suit : Partition
Date of commencement of : 19.06.2024
Recording of the evidence
Date on which the Judgment : 07.12.2024
was pronounced
Total Duration : Years Months Days
12 09 20
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
This is a suit filed by the plaintiffs for passing judgment and decree of partition of their 1/5th share in all the suit schedule properties by metes and bounds and for declaration.
2. The brief averments of plaint is as follows: -
The plaintiffs contend that Late Appajappa is the propositus of their family. The family of Late Appajappa owned vast extent of immovable properties at Gownipalli Village of Srinivasapura Taluk, Kolar District. The said Late Appajappa 4 O.S.No.1426/2012 had 5 sons and three daughters. At a Family Settlement on 25.02.1986 amongst the sons of Late Appajappa, certain properties were allotted to Late G.Gopala Rao. The plaintiffs, defendant No.3 are the daughters and defendant No.1 and 2 are the sons of Late Gopala Rao. The suit schedule properties have been allotted to Late Gopala Rao in the Family Settlement. The said Late Gopala Rao died on 26.06.2002.
There is no partition in the family in respect of suit schedule properties. The plaintiffs are entitled to their legitimate share in the suit schedule properties.
2(a). The plaintiffs have demanded for partition of suit schedule properties with defendant No.1 and 2. The defendant No.1 and 2 went on giving evasive replies, without conceding for partition in the family. However, due to repeated telephonic communications made by the plaintiff No.2, defendant No.2 sent a certified copy of alleged Will purported to have been executed by plaintiffs' father on 08.01.1995. To the shock and surprise of the plaintiffs, for the first time, they came to know that plaintiffs' father had executed 2 registered Wills. Since there is a reference to the earlier Will dated 24.01.1991 in the latter Will dated 08.01.1995, the plaintiffs have come to know these facts in the month of December 2011. The plaintiffs were shocked at the conduct of defendant No.1 and 2. The intention of defendant No.1 and 2 was very clear in their act of forwarding the copy of registered Will dated 08.01.1995. It is apparent that defendant No.1 and 2 are trying to defeat the 5 O.S.No.1426/2012 rights of the plaintiffs in the suit schedule properties. After receipt of the Will dated 08.01.1995, plaintiff No.2 has sent two e-mails dated 12.12.2011 and 30.12.2011 to defendant No.1 and 2, expressing her dismay and her disapproval of the contents of said Will. Since it was very clear that defendant No.1 and 2 are trying to defeat the rights of plaintiffs. The plaintiffs have sent a joint e-mail communication on 01.01.2012, requesting defendant No.1 and 2 to furnish documents mentioned therein to enable them to work out their rights. The defendant No.1 and 2 have maintained absolute silence despite the aforesaid communication sent by plaintiffs. The plaintiff No.1 also sent another e-mail communication on 08.01.2012, requesting them to send the copies of documents. Despite all the communications, defendant No.1 and 2 refused to send the required documents to the plaintiffs. The plaintiff No.1 has applied for the certified copies of registered Wills of Late Gopala Rao dated 24.01.1991 and 08.01.1995.
2(b). The plaintiffs and defendant No.3 reposed absolute confidence in defendant No.1 and 2. The plaintiffs have signed blank papers at the instance of defendant No.1 when he represented that their signatures are required for obtaining loan for construction on the then existing foundation. The plaintiffs, believed the words of defendant No.1 and reposed confidence, signed on blank papers. The defendant No.1 and 2 must have obtained the signatures of plaintiffs on blank papers only to 6 O.S.No.1426/2012 defeat the rights of plaintiffs. The defendant No.1 and 2 have exploited the filial legal relationship of the plaintiffs.
2(c). The suit schedule properties are the joint family properties of plaintiffs and defendants. Plaintiffs have got their legitimate share. The very content of registered Will dated 24.01.1991 would clearly prove that suit schedule properties are the joint family properties. The plaintiffs and defendant No.3 are in joint possession and enjoyment of suit schedule properties. The defendant No.1 and 2 cannot defeat the rights of plaintiffs and defendant No.3. The defendant No.1 and 2 started giving evasive replies to the plaintiffs. The defendant No.1 and 2 have brought into light the alleged second Will purported to have been executed by plaintiffs' father . By this conduct of the defendant No.1 and 2, they have no intention of partitioning the property, allotting the legitimate share to the plaintiffs. The defendant No.1 and 2 are in possession of Family Settlement Deed dated 25.02.1986, pursuant to which the father of plaintiffs had been allotted his share of joint family properties. The suit schedule properties are the properties fallen to the share of the father of plaintiffs in a Family Settlement Deed dated 25.02.1986. The Family Settlement Deed dated 25.02.1986 was reached during the pendency of O.S.No.2/1983 filed by one Sri.G.Ramamurthy and G.Srinivasa Murthy, who are the brothers of the father of plaintiffs and defendants. The said suit was filed for partition and separate possession in the Court of Civil Judge, Kolar against 7 O.S.No.1426/2012 Sri.G.Gopala Rao, the father of plaintiffs and defendants and his brothers and others. The said suit came to be disposed of by filing a joint memo by the plaintiffs therein along with the defendant No.1 to 3 in the said suit by stating that the controversy involved in the said suit was settled out of court and agreement arrived in that regard was also enclosed to the joint memo. Under the said compromise, Final Settlement was reached in respect of properties of late Sri.Appajappa, the grandfather of plaintiffs and defendants, among the parties to the said suit.
2(d). After verification of Family Settlement, the plaintiffs came to know that apart from the suit schedule properties, other lands were also allotted to share of the father of plaintiffs and defendants, situated at Gownipalli Village. The plaintiffs are also entitled to share in all these properties. The defendant No.1 and 2 recently got the mutation in respect of suit Item No.2 and 3 in their names without disclosing the same to the plaintiffs and defendant No.3. The aforesaid Family Settlement indicates that suit properties including Item No.1 were treated as joint family properties and the said properties were allotted to the share of the father of plaintiffs and defendants. Since the plaintiffs have been residing along with their respective families, there were not completely aware of the various steps taken by their late father during his life time. In this background, the plaintiffs were also not aware of that fact that a portion of Item No.1 of suit schedule properties was sold by their late father 8 O.S.No.1426/2012 during his life time and they were not present at the time of execution of said document. Subsequently on enquiries, they came to know that their father had executed registered Sale Deed on 10.01.1979 in favour of Smt.Rama Girish under which portion of Item No.1 of suit schedule property was sold by their father, measuring East to West: 40 feet and North to South: 80 feet. The available extent of Item No.1 of suit schedule property measures only 6400 square feet.
2(e). The defendant No.1 filed additional written statement and alleged for the first time that Late Gopala Rao had executed a Lease Deed dated 14.06.1994 in favour of the wife of defendant No.2, in respect of 3200 square feet in Item No.1 of the suit schedule properties for a period of 99 years. Further, they had also contended that Late Gopala Rao had executed a registered Lease Deed dated 19.03.1994 in favour of the wife of defendant No.1 for a period of 90 years, in respect of portion of Item No.1 of suit schedule properties. The plaintiffs came to know that there was a registered Rectification Deed alleged to have been executed by Late Gopala Rao in respect of Lease Deed in favour of defendant No.1. These Lease Deeds were not within the knowledge of plaintiffs at the time of filing of the suit and they were shocked when these claims were made by defendant No.1 and 2 in their written statements. Admittedly, Sri. Gopal Rao had executed a registered Will Deed dated 24.01.1991, under which he had bequeathed certain portions of Item No.1 of suit schedule properties in favour of 9 O.S.No.1426/2012 plaintiffs and defendant No.3 also. In this background, he could not have executed any registered Lease Deed in the year 1994, leasing portion of very same property in favour of the wives of defendant No.1 and 2. The said Lease Deeds are either fabricated or have not been executed these Lease Deeds voluntarily by Late Gopal Rao. The very fact that the registered Lease Deeds have been executed for a period of 90 and 99 years respectively, clearly indicate that the same have not come into existence in normal circumstances. During the said period, the plaintiffs and defendant No.3 were not residing with their father and living with their family. It was only defendant No.1 and 2 who were residing in Item No.1 of suit schedule properties along with Late Gopal Rao . During the said period, as claimed by defendant No.1 and 2, two registered Lease Deeds dated 19.03.1994 and 14.06.1994, for a period of 90 and 99 years have come into existence in favour of their wives of defendant No.1 and 2 in the month of January 1995. On 08.01.1995, the registered Will said to have executed by Late Gopal Rao revoking the earlier registered Will Deed dated 24.01.1991 has been revoked also has come into existence. These facts clearly indicate that the aforesaid registered Lease Deeds dated 19.03.1994 and 14.06.1994 and also registered Will Deed dated 08.01.1995 are not genuine documents and they have come into existence under suspicious circumstances.
2(f). The suit Item No.1 of suit schedule property is also one of the joint family properties and the plaintiffs have got 10 O.S.No.1426/2012 right by birth in the suit schedule properties. The registered Lease Deeds and registered Rectification Deed do not bind the rights of plaintiffs and same are sham and nominal documents created by defendant No.1 and 2 to deprive the rights of plaintiffs in Item No.1 of the suit schedule property. On these grounds, plaintiffs prays to decree the suit by allotting their 1/5 th share in the suit schedule properties by metes and bounds and also for declaration.
3. The brief averments of written statement of defendant No.2 is as follows : -
The suit of the plaintiffs is not maintainable. The relationship between the parties is admitted. The plaint is filled with suppression of facts. The plaintiffs are not entitled to their legitimate share in the suit schedule properties. The plaintiffs at no point of time had demanded any share in the suit schedule properties. There was no occasion for the defendants to give evasive replies. The execution of Will Deed dated 28.01.1995 was well within the knowledge of plaintiffs as well as every other member of the family. The Will Deed dated 28.01.1995 is conspicuously clear as to why Sri.Gopala Rao had to execute the said Will. The Will Deed dated 28.01.1995 executed by Sri.Gopala Rao was within the knowledge of the plaintiffs during the life time of Sri.Gopala Rao itself. The Will Deed dated 28.01.1995 having superseded the Will deed dated 24.01.1991 would be the Last Will and Testament executed by Sri.Gopal Rao and the parties have no choice but to accept the same in 11 O.S.No.1426/2012 all fairness. The defendant No.1 and 2 have not tried to defeat the rights of plaintiffs in the suit schedule properties. The plaintiffs should have preferred their claim immediately upon the demise of Sri.Gopala Rao. The plaintiffs had full knowledge about the execution of Will Deed dated 28.01.1995, they have not made a claim till recently.
3(a). The defendant No.1 and 2 are in independent and peaceful physical possession and enjoyment of their respective portions bequeathed by Sri.Gopala Rao , as such plaintiffs have absolutely no right or legal entitlement to the said item No.1 of the suit schedule property. The execution of Will Deed dated 28.01.1995 was well within the knowledge of plaintiffs as well as every other member of the family. The plaintiffs were also well aware of Will Deed dated 24.01.1991 that was annulled by Sri.Gopala Rao. The plaintiffs and defendant No.3 were visiting defendant No.1 and 2 until recently prior to the filing of the suit.
3(b). The defendant No.1 and 2 have demarcated their respective portions of Item No.1 of the suit schedule property, invested huge amount and constructed residential buildings and also carried out modifications and improvements, which fact was well within the knowledge of plaintiffs and defendant No.3. At no point of time either during the life time of Sri.Gopala Rao or after his demise for nearly a decade, the plaintiffs or defendant No.3 did not raise any objections for all the developments. The defendant No.1 and 2 have constructed the 12 O.S.No.1426/2012 building, made modifications/improvements in a portion of Item No.1 of the suit schedule property in pursuance of the Lease Deeds dated 19.03.1994 and 14.06.1994. The lease hold rights even to this day are valid and still subsisting. Sri.Gopala Rao in his last Will Deed dated 21.08.1995 has also referred the above Lease Deeds and has also confirmed that the defendant No.1 and 2 had also redeemed the financial consideration under the said Lease Deeds. The duration of the lease is for 99 years, commencing from the date of execution of respective dates with the option of renewing the lease for a further period of five years at the option of the lessee. In the said Lease Deeds Sri.Gopala Rao has specifically mentioned the area leased out in favour of respective spouses of defendant No.1 and 2. The plaintiffs were well aware of the Lease Deeds. The said Lease Deeds were executed much prior to the execution of Will Deed dated 21.08.1995. Sri Gopala Rao has made reference to the same in his Will Deed dated 21.08.1995. The suit of the plaintiffs is bad for non-joinder of necessary parties. The plaintiff No.2 has sent 2 e-mails dated 12.12.2011 and 30.12.2011 to defendant No.1 and 2, expressing her dismay and disapproval of the Will is only for the purpose of trying to make believe this court and she has a share in the property. The Will Deed dated 28.01.1995 being a registered Will and the Executant himself having gone to the Registration Office and having got the same duly registered in accordance with law. The plaintiffs questioning the very act of Sri.Gopala Rao would only prove that they have no respect or regards for the late father and it 13 O.S.No.1426/2012 establishes beyond reasonable doubts that they are materialistic greed has taken over them. These defendants have not made any efforts to defeat the rights of the plaintiffs. The plaintiffs till recently were cordial with the defendants. The plaintiffs have taken advantage of defendants' innocence about the scheming character of the plaintiffs. At no point of time, this defendant got signatures of the plaintiffs on blank papers. This defendant denied of exploiting the filial relationship of the plaintiffs.
3(c). This defendant denied that suit schedule properties are joint family properties of plaintiffs and defendants. The contents of the Will Deed dated 28.01.1995 clearly explains as to how the plaintiffs do not have an iota of right in any of the suit schedule properties. This defendant denied that plaintiffs and defendant No.3 are in joint possession and enjoyment of the suit schedule properties. The plaintiffs have absolutely no manner of right, title and interest over any of the suit schedule properties. In view of Will Deed dated 28.01.1995 being the being the Last Will and Testament of Sri.Gopala Rao, the plaintiffs do not have any right to demand for partition or separate possession of any of the suit schedule properties.
3(d). The suit Item No.1 is not available for partition. The suit Item No.1 is the self acquired property of Sri Gopala Rao. Sri.Gopala Rao was a Central Government Employee and he had superannuated during the year 1970-71 at Bangalore.
14 O.S.No.1426/2012Sri.Gopala Rao had sold a portion of suit Item No.1 during his life time, which fact the plaintiffs are well aware of. In fact, Sri.Gopala Rao was forced to sell the portion of said property only for the reason that he had to perform his daughters' marriages. There is absolutely no cause of action. The court fee paid is insufficient. On these grounds, defendant No.2 prays for dismissal of suit with exemplary costs.
4. The defendant No.1 filed memo and adopted the written statement filed by defendant No.2.
5. The defendant No.1 filed the additional written statement. The brief averments of additional written statement of defendant No.1 is as follows : -
The suit of the plaintiffs is not maintainable. The relationship between the parties is admitted. The plaintiffs have suppressed the facts. This defendant denied the claim that the plaintiffs are entitled to legitimate share in the suit schedule properties. At no point of time, this defendant gave evasive replies. This defendant had answered the plaintiffs whenever approached personally and in clarity. The execution of Will Deed dated 28.01.1995 was well within the knowledge of plaintiffs as well as every other member of the family. The plaintiffs pleading ignorance of the same is only for their convenience for the purpose of making out a false case against the defendants. The statements made in Will Deed dated 28.01.1995 is abundantly clear as to why Sri.Gopala Rao had to 15 O.S.No.1426/2012 execute the said Will. The Will Deed dated 28.01.1995 executed by Sri.Gopala Rao was within the knowledge of plaintiffs during the life time of Sri.Gopala Rao itself. If the plaintiffs have any iota of respect and gratitude for what all they have received during their marriage times as well as later during the life time of Sri.Gopal Rao, they would not have questioned the propriety of Will dated 28.01.1995 by Sri.Gopal Rao. It is only the Last Will. The Will Deed dated 28.01.1995 having superseded the Will deed dated 24.01.1991 would be the Last Will and Testament executed by Sri.Gopal Rao and the parties have no choice but to accept the same in all fairness. If at all, the plaintiffs had to make a claim as they have made now, they should have preferred the claim immediately upon the demise of Sri.Gopala Rao. The plaintiffs had full knowledge about the execution of Will Deed dated 28.01.1995 and they have not made a claim till recently. Nothing prevented the plaintiffs from making a claim immediately after the demise of Sri.Gopal Rao.
5(a). The defendant No.1 and 2 are in independent and peaceful physical possession and enjoyment of their respective portions bequeathed by Sri.Gopala Rao. The plaintiffs have absolutely no right or legal entitlement to the said item No.1 of the suit schedule property. The plaintiffs were well aware of both Will Deeds dated 28.01.1995 and 24.01.1991. The plaintiffs and defendant No.3 were visiting defendant No.1 and 2 until recently prior to the filing of the suit.
16 O.S.No.1426/20125(b). Both defendant No.1 and 2 have demarcated their respective portions of Item No.1 of the suit schedule property, invested huge amount and constructed residential buildings and carried out modifications and improvements. The plaintiffs were well aware of these modifications and improvements made by defendant No.1 and 2. The allegations of plaintiff not only against defendant No.1 and 2, but also against the departed soul of Sri.G.Gopal Rao. The plaintiffs with ulterior motives are making false allegations against the defendants and also against memories of the departed soul. At no point of time either during the life time of Sri.Gopala Rao or after his demise for nearly a decade, the plaintiffs or defendant No.3 did not raise any objections of all the developments and constructions made by these defendant No.1 and 2. The plaintiffs were aware of modifications/improvements made by these defendant No.1 and 2 in a portion of Item No.1 of the suit schedule property in pursuance of the Lease Deeds dated 19.03.1994 and 14.06.1994 executed by Sri.G.Gopal Rao in favour of the respective spouses of defendant No.1 and 2. The lease hold rights even to this day are valid and still subsisting. Sri.Gopala Rao in his last Will Deed dated 21.08.1995 has also referred the above Lease Deeds and has also confirmed that the defendant No.1 and 2 had also redeemed the financial consideration under the said Lease Deeds. The duration of the lease is for a period of 90 years in case of spouse of defendant No.1 and 99 years in the case of spouse of defendant No.2, commencing from the date of execution of respective dates with 17 O.S.No.1426/2012 the option of renewing the lease for a further period of five years at the option of the lessee. All these facts were well within the knowledge of plaintiffs. The plaintiffs have intentionally suppressed the above facts and have filed the above suit on false allegations. The said Lease Deeds were executed much prior to the execution of Will Deed dated 21.08.1995. Sri.Gopala Rao has made reference to the Lease Deeds in his Will Deed dated 21.08.1995. The suit of the plaintiffs is bad for non-joinder of necessary parties. The Will Deed dated 28.01.1995 is a registered Will and the Executant himself having gone to the Registration Office and got the same duly registered. The plaintiffs till recently (before filing the case) were cordial with the defendants. The plaintiffs have taken advantage of defendants' innocence about the scheming character of the plaintiffs. This defendant denied obtaining the signatures of plaintiffs on blank papers.
5(c). This defendant denied that suit schedule properties are joint family properties of plaintiffs and defendants. The contents of the Will Deed dated 28.01.1995 clearly explains as to how the plaintiffs do not have an iota of right in any of the suit schedule properties. This defendant denied that plaintiffs and defendant No.3 are in joint possession and enjoyment of the suit schedule properties. In view of Will Deed dated 28.01.1995 being the being the Last Will and Testament executed by Sri.Gopala Rao, the plaintiffs do not have any right to demand 18 O.S.No.1426/2012 for partition or separate possession of any of the suit schedule properties.
5(d). This defendant denied that the suit schedule properties have fallen to the share of plaintiffs' father in a Family Settlement Deed dated 25.02.1986. The suit Item No.1 is the self acquired property of Sri Gopala Rao. The averments of plaint in O.S.No.2/1983 is self explanatory. The very adding of Item No.1 of the suit schedule property is more confirmation of the exclusive ownership of Sri.Gopala Rao. Merely mentioning the property in the compromise petition does not disturb the ownership of Sri.Gopal Rao with regard Item No.1 of the suit schedule property. In the Memorandum of Recording of Family Property dated 25.02.1986, it has been clearly and categorically mentioned the property of schedules of 5 brothers under respective names enjoying full ownership rights by this Agreement (1) Sri.G.Gopal Rao. The reading of the same establishes that Item No.2 was not the plaint schedule property in O.S.No.2/1983. Sri.Gopal Rao after purchasing Item No.1 of the suit schedule property exercising his indefeasible ownership rights, sold a portion of the same on 10.01.1979. The plaintiffs were well aware of alienation of portion of Item No.1 of the suit schedule property. The said Sri.G.Gopala Rao had leased a portion of retained property in Item No.1 in favour of the wife of defendant No.1, for a period of 90 years, on 19.03.1994. This defendant submitted that the original Lease Deed was submitted to the Bank for availing Housing Loan for 19 O.S.No.1426/2012 construction of residential house on the leased property. The said Lease Deed is misplaced. In pursuance of the execution of Lease Deeds, the respective lessees along with spouse have developed the respective portions and have been in peaceful possession and enjoyment and enjoyment of the same in their own independent rights. Sri.Gopala Rao on 14.06.1994 executed a Lease Deed in favour of the wife of defendant No.2, for a period of 99 years, in respect of area measuring 3200 square feet in Item No.1 of the suit schedule property. The wife of defendant No.2 is in uninterrupted peaceful possession and enjoyment of said property. The plaintiffs are well aware of Lease Deeds.
5(f). The plaintiffs only on the basis of Joint Memo referred to filed in O.S.No.2/1983 have filed this suit. The plaintiffs have not challenged the alienation made by Sri.Gopala Rao with respect to portion of Item No.1 of the suit schedule property. The plaintiffs have not challenged the Sale Deed executed by Sri.Gopala Rao with respect to portion of Item No.1 of the suit schedule property. The plaintiffs admitted the contents of Sale Deed executed by Sri.Gopala Rao. Item No.1 of the suit schedule property is not joint family property. The plaintiffs were aware of sale of portion of Item No.1 of the suit schedule property. The suit of the plaintiff is hopelessly barred by limitation. Item No.1 of the suit schedule property is not available for partition. Item No.1 of the suit schedule property is the self acquired property of Sri.Gopala Rao. Sri.Gopala Rao 20 O.S.No.1426/2012 was gainfully employed in Central Government. Sri.Gopal Rao by exercising his independent right also sold the portion of Item No.1 of the suit schedule property. There is no cause of action. The court fee paid is insufficient. On these grounds, defendant No.1 prays for dismissal of suit with exemplary costs.
6. The defendant No.4 filed memo and adopted the written statement of defendant No.1.
7. The defendant No.5 filed memo and adopted the written statement of defendant No.2.
8. On the basis of the pleadings of the parties, my predecessors-in-office has framed the following issues and additional issues for determination:-
ISSUES
1. Whether plaintiffs prove that suit schedule properties are the joint family properties of plaintiffs and defendants?
2. Whether defendant Nos.1 and 2 prove that their father Sri.G.Gopal Rao executed registered Will dated 28.01.1995 in respect of suit schedule property in favour of defendant Nos.1 and 2?
3. Whether defendant No.2 proves that suit is bad for non-joinder of necessary parties?
4. Whether plaintiffs prove that they are entitle 21 O.S.No.1426/2012 for share in the suit schedule properties? If so, how much?
5. Whether suit is barred by law of limitation?
6. Whether plaintiffs are entitle for the reliefs as sought for in the suit?
7. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendants No.1 and 2 prove that their father Late G.Gopal Rao executed a Registered Lease Deed in favour of their wives in respect of the 1st item of the suit schedule properties as contended in the additional written statement?
2. Whether the plaintiffs prove that the Registered Lease Deeds dated 19.03.1994 and 14.06.1994 and Rectification Deed dated 14.06.1994 are null and void and not binding on them?
9. After settlement of issues, the plaintiff No.2 has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.36 were marked through her. On behalf of the defendants, defendant No.2 and 1 have entered into the witness box as DWs.1 and 2 and examined one witness by name D.R.Sathyanarayana as DW-3 and Ex.D.1 to Ex.D.79 were marked on behalf of the defendants. Ex.C.1 and C.1(a) were marked.
22 O.S.No.1426/201210. Heard the arguments of the learned counsel for plaintiffs and defendants.
11. My findings on the above issues are as under:-
Issue No.1: In the affirmative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the affirmative.
Issue No.5: In the negative.
Issue No.6: In the affirmative.
Addl. Issue No.1: In the negative.
Addl. Issue No.2: In the affirmative.
Issue No.7: As per final order below
for the following:
REASONS
12. Issue No.1:- There is no dispute regarding relationship of the parties to the suit. It is the case of the plaintiffs that suit schedule properties are all joint family properties of plaintiffs and defendant No.1 to 3. The plaintiffs have a right by birth in the suit schedule properties. The Family Settlement dated 25/02/1986 effected between the father of plaintiffs and his brothers indicates that suit schedule properties including suit Item No.1 were treated as joint family properties and the said properties were allotted to the share of the father of plaintiffs and defendant No.1 to 3. After the death of the father of plaintiffs or during the life time of their father, there was no partition in the family in respect of suit schedule properties.
23 O.S.No.1426/201213. It is the case of plaintiffs that Late Sri.Appajappa is the propositus of their family. The family of Late Sri.Appajappa owned vast extent of immovable properties at Gownipalli Village and other villages of Srinivasapura Taluk, Kolar District. The defendants have not disputed the fact of propositus owning vast extent of landed properties in the village. It is the case of plaintiffs that suit schedule properties have been allotted to the share of their father Late Sri.Gopala Rao in the Family Settlement. The defendant No.1 and 2 denied that their father acquiring suit schedule Item No.1 in the said Family Settlement, but however these defendants admitted their father acquiring other landed properties in the Family Settlement.
14. The burden of proving that suit schedule properties are all joint family properties of plaintiffs and defendant No.1 to 3 is on the plaintiffs. But, once such a nucleus is either proved or admitted which from its nature and relative value it could be inferred that such property could have been acquired, the burden shifts to the party alleging self acquisition and he or she must establish affirmatively that such property was acquired without the aid of the joint family. In this case, it is the case of defendant No.1 and 2 that their father was gainfully employed in a Central Government and he was getting hand some salary and from out of that salary, he had purchased the suit schedule Item No.1. As such suit schedule Item No.1 is the self acquired property of their father Late Sri.Gopala Rao. The defendant No.1 and 2 denied that suit schedule Item No.1 is the joint 24 O.S.No.1426/2012 family property of plaintiffs and defendant No.1 and 2. However, these defendants have not denied the fact of other properties being a joint family properties. These defendants are only denying that suit schedule Item No.1 as a joint family property. According to these defendants, their father purchased the suit schedule Item No.1 from out of his income very long back and suit schedule Item No.1 was allotted to their father by then CITB (City Improvement Trust Board). But as per the case of plaintiffs, this property was purchased by their father from out of the village funds. According to the plaintiffs, their father purchased the suit Item No.1 by utilising the joint family income/funds.
15. It is relevant note, at this stage that Hon'ble Supreme Court in the decision reported in A.I.R. 1961 SC 1268 (Mallesappa Bandeppa Desai v. Desai Mallappa) held as follows:
"......... in our opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from the separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners"
16. In this case, Manager Late Sri.Appajappa or father of plaintiffs Sri.Gopala Rao is no more. It is the defendant No.1 and 2 contending that suit Item No.1 was purchased from out of 25 O.S.No.1426/2012 his own funds by their father and not with the help of joint family funds. Hence, it is for the defendant No.1 and 2 to prove by clear and satisfactory evidence that purchase money for the suit Item No.1 proceeded from their father separate fund. The general principle is that a Hindu family is presumed to be joint unless the contrary is proved.
17. The Hon'ble Supreme Court in the decision reported in (2003) 10 SCC 310 (D.S.Lakshmaiah and another v. L.Balasubramanyam and another) held as hereunder:-
"Hindu law- joint family- whether joint family property or self acquired- property cannot be presumed to be joint family property merely because of existence of a joint family- burden to prove the property to be joint lies on the person who asserts so - but if he proves that family possessed sufficient nucleus with the aid of which and joint family property could be acquired, then presumption would be that the property is joint and onus would shift on the person claiming it to be self acquired- on failure to establish the nucleus, held, burden of proof would remain on the person who asserts the property to be joint."
18. In the light of the aforesaid proposition of law, the plaintiffs have to prove that the family possessed sufficient joint family nucleus. In the case on hand, the dispute is only with respect to suit Item No.1 of the suit schedule properties. The defendant No.1 and 2 are claiming that suit schedule Item No.1 is the self acquired property of Sri.Gopala Rao. These defendant No.1 and 2 have not denied other suit schedule properties being a joint family properties of their family. These 26 O.S.No.1426/2012 defendants disputes only the suit schedule Item No.1 by asserting that suit schedule Item No.1 is the self acquired of their father.
19. The plaintiffs in this case have produced Ex.P.11 certified copy of Memorandum regarding of the Family Property/Final Settlement Agreement of Properties (land and housing) of Late Sri.Appajappa, Gownipally, Royalpad Hobli, Srinivasapura Taluk. Admittedly, this Ex.P.11 is signed by defendant No.1 of this case as a Power of Attorney Holder of his father. The perusal of Ex.P.11, it clearly establishes that propositus Late Appajappa's family owned several agricultural lands in Gownipally, Cheelepally, G.Thumannapalli, Kodipalli, Digavamorompalli and other villages of Srinivasapura Taluk of Kolar District. In Ex.P.11 Family Settlement, the landed properties and along with other properties purchased in the names of respective brothers of father of plaintiffs including the father of plaintiffs and including suit schedule Item No.1 of this suit were allotted to different brothers under the said Family Settlement. In Ex.P.11 at page No.4 in the Schedule-II, it is mentioned that "property schedules of five brothers under respective names enjoying full ownership rights by this agreement". The properties situated even at Bangalore City were also included in the Schedule-II of Ex.P.11. The father of plaintiffs was given as per this Schedule-II several agricultural landed properties, situated at Gownipally and other villages and residential house and vacant site, situated in Bangalore City 27 O.S.No.1426/2012 No.9, 37th Cross, 8th Block, Jayanagar as share of the father of plaintiffs. These facts clearly indicates that plaintiffs have established the existence of sufficient joint family nucleus out of which suit Item No.1 could have been acquired by their father.
20. DW.1- G. Murali Rajendra is the defendant No.2 of this suit. DW-1 in the cross-examination admitted that he does not have personal knowledge regarding the source of purchase of suit Item No.1 by his father. DW-1 in the cross-examination at page No.12 also admitted that apart from cash receipts and Allotment Letter, he does not have any other documents to prove that suit Item no.1 was purchased by his father from out of his earnings. Further this witness clearly admitted that as per Ex.D.1 his father was working outside the Bangalore right from 1953-54 onwards upto 1970. It is also admitted by DW-1 during such period his father was residing in Guntur and other places with his family. DW-1 has not denied the suggestion that his grandfather was a Jodhidhar and owning lands in the village and surrounding villages. DW-1 admitted that he does not have any documents to show as to how much of salary his father was getting from 1957 to 1970. This witness also does not have any document to prove that how much of amount his father was saving. DW-1 in the cross-examination further clearly admitted that Ex.P.11 was signed by defendant No.1 on behalf of his father. DW-1 has not denied the suggestion that properties situated in NR Colony, Bangalore was purchased by his grandfather in the name of his uncle by name Srinivasa Murthy.
28 O.S.No.1426/2012DW-1 also not denied the suggestion that his grandfather purchasing property at Jayanagar 5th Block in the name of his uncle by name Ramamurthy. DW-1 has also not denied the suggestion that his grandfather purchasing flat at Chembur, Bombay in the name of his uncle by name G.V.Subramanya. To this suggestions, DW-1 expressed his ignorance. But to the suggestion that in the same way his grandfather also purchased suit Item No.1 in the name of his father from out of the joint family funds, this witness has denied the said suggestion. It is relevant to note, at this stage, the Schedule-II of Ex.P.11 all these properties situated in Bangalore and Bombay were included. The very inclusion of properties situated in Bangalore and Bombay in the Schedule-II of Ex.P.11 clearly establishes that suit schedule Item No.1 is also one of the joint family property of the plaintiffs and defendant No.1 and 2.
21. DW-1 in the cross-examination further clearly admitted that partition suit in OS No.2/1983 was disposed of in terms of joint memo filed by parties on 28/02/1986. DW-1 also clearly admitted that he had gone through the Family Settlement completely. As per the Family Settlement Ex.P.11(a) the properties mentioned in the Schedule-II were allotted to different brothers including his father. DW-1 also further clearly admitted that properties situated at Gownipalli Village and other Villages are all ancestral properties of family. But, DW-1 is not accepting that suit schedule Item No.1 also purchased out of joint family funds and it is mentioned in the Schedule-II of 29 O.S.No.1426/2012 Ex.P.11 Family Settlement Deed. DW-1 to a question posed to him in the cross-examination that nowhere in Ex.P.11 mentioned that suit Item No.1 described in the Schedule-II of Ex.P.11 is the self acquired property of his father. To this question, DW-1 stated that he is not able to comment on this. Hence, there is no denial to the suggestion by this witness. Further more, nowhere in Ex.P.11 it is mentioned that suit Item No.1 is the self acquired property of the father of DW-1 and it is not part of joint family property. DW-1 has not explained as to why this property was included in Ex.P.11 Schedule-II. This witness in the cross-examination clearly admitted that properties purchased in the name of his uncles situated in Bangalore and Bombay included in the said Family Settlement. DW-1 has stated house properties standing in the names of his uncles are all their self acquired properties. In this regard, DW-1 has not produced any documents, but this witness is making statement that these properties were all self acquired properties of his uncles without going through the sale deeds and without going to the source of income of his uncles based on his own impression. But, this witness denied the suggestion that residential houses standing in the name of his father and his uncles were purchased out of joint family funds as such they were included in the Family Settlement. As already discussed, this witness has not produced any documents regarding the source of income of his uncles and also to prove that those properties were all self acquired properties of his uncle. In the absence of any documents in this regard and in the absence of 30 O.S.No.1426/2012 any evidence and material the oral contention of this witness that house properties situated in Bangalore and Bombay standing in the names of his uncles were also self acquired properties of uncles not purchased out of joint family funds do not inspire truth. The very inclusion of properties situated in Bangalore and Bombay standing in the names of uncles of DW.1 in the Schedule -II of Ex.P.11 clearly establishes that case of plaintiffs is more probable and plausible. The very mentioning of suit Item No.1 in the Schedule-II of Ex.P.11 clearly establishes that there is a more preponderance of probability in the case of plaintiff than defendant No.1 and 2.
22. DW-1 further in the cross-examination admitted that in Ex.D.43 Will Deed, his father had explained the mode of acquisition of suit Item No.1. During the course of cross- examination of DW-1 his attention to paragraph No.3 of Ex.D.43 and marked as Ex.D.43 (a) was drawn. DW-1 has not denied Ex.D.43(a), the mode of acquisition of suit Item No.1 by his father. As per this paragraph of Ex.D.43 it is mentioned that properties acquired by Family Settlement Agreement on 25/02/1986 and also property acquired by him from CITB were bequeathed by Sri.Gopala Rao in favour of his children to avoid a future complications and litigations. In this Ex.D.43(a), the father of this DW-1 nowhere mentioned that suit Item No.1 is the self acquired property of him and it is not a part of joint family property.
31 O.S.No.1426/201223. DW-2 in the cross-examination clearly admitted that he was born in 1952. That his entire education was taken place in Guntur, Andhra Pradesh after 1970, except for two years where he studied in Nagpur. This witness also clearly admitted since he was away from Karnataka and living in Guntur of Andhra Pradesh from 1958 to 1970 he was not completely aware of the affairs relating to agricultural properties of his grandfather and his other sons. It is also clearly admitted by DW-2 that in the year 1958 he was six years old and he was not aware as to how much of salary his father was getting and much of income his father was getting and much of the income his father was spending. It is relevant to note that, the father of DW-2 stated to have paid ₹1000/- as per Ex.D.2 on 13/01/1958 and further payments were made in the year 1958. The payments made in the year 1958 is evident from Ex.D.2 to D.11. As per Ex.D.2, suit Item No.1 was allotted to the father of plaintiffs on 13/01/1958.
24. From the evidence of DW-1 and 2, it is clear that they were minors when the suit schedule Item No.1 was allotted to their father and they were not completely aware of affairs relating to agricultural properties of their grandfather and his sons. In the light of the above said evidence given by DW.1 and 2, defendants have miserably failed to prove that suit Item No.1 of suit schedule properties is the self acquired property of Late Sri.Gopala Rao.
32 O.S.No.1426/201225. Ex.P.11 which is a Family Settlement Agreement filed in OS No.2/ 1983, which is a suit for partition filed by the two brothers of Late Sri.Gopala Rao, against the father of plaintiffs and others, clearly indicates that suit Item No.1 of suit schedule properties was treated as one of the joint family properties and same was included in the schedule to the Family Settlement Deed as one of the properties allotted to the share of Late Sri.Gopala Rao. The defendant No.1, who is the signatory to Ex.P.11 is a Power of Attorney Holder of Late Sri.Gopala Rao is estopped from disputing that said property is not one of the joint family properties of Late Sri.Gopala Rao and his brothers.
26. Further more, DW.2 in the cross-examination clearly admitted that in the year 1958, when the suit schedule Item No.1 was allotted to his father by CITB, he was six years old. Hence, the contention of this witness that due to the efforts of his grandfather through his well-wishers suit schedule Item No.1 was allotted to his father is not acceptable. DW-2 also clearly admitted in the cross-examination that right from 1958 till construction of ground floor and even thereafter till 1970, his father was working in Guntur. DW-2 also denied the suggestion that the entire expenditure for the purchase and for the construction suit schedule Item No.1 were borne out of income from agricultural properties, situated at Gownipally and other villages. But, the evidence of this witness in this regard is not credible because he was a minor of six years old boy at that 33 O.S.No.1426/2012 time. This witness is not competent to say that suit schedule Item No.1 was not purchased out of income from agricultural properties, situated at Gownipally Village and other villages. Admittedly, the father of this DW-2 was working at Guntur at the time of payment of purchase money for the purchase of suit Item No.1 was paid. DW-2 has clearly admitted that he has not got any documents to prove that his father sending money for making payment to CITB or for the construction. Further more, DW-2 admitted that he was living in a rented room separately from 1973 to 1974 and also during 1974 to 1976 he was not living with his parents.
27. DW-2 in the cross-examination admitted that till 1983, there was no partition between his father and his brothers. DW-2 admitted that in the year 1983, his uncles by name Ramamurthy and Srinivasamurhty had filed a suit for partition in O.S.No.2/1983. This witness also admitted his uncles Ramamurthy and Srinivasamurhty owning house properties in Bangalore in their names. This witness also admitted that those properties owned by his uncles Ramamurthy and Srinivasamurhty situated in Bangalore and also apartment situated in Bombay standing in the name of his uncle by name G.V. Subramanyam were not included in the said partition suit. Later on, in Ex.P.11 these properties were also included and got allotted to them. DW-2 clearly admitted that he had signed Family Settlement and Joint Memo representing his father as his Power of Attorney Holder. This 34 O.S.No.1426/2012 witness also admitted that his uncle by name Narayanamurthy seriously contested the said suit by filing written statement. It is also admitted by this witness that his father remained exparte in the said suit for long time. Interestingly, DW-2 has not filed written statement filed by his father in the said suit. DW-2 clearly admitted that Ex.P.11 was signed by all the parties by admitting its contents. The conduct of this witness that he was not fully aware of contents of Ex.P.11 admitting that he was partly aware of Ex.P.11 goes to show that he is not telling the truth. The answers given by this witness to the questions posed to him in the cross-examination at page No.16 clearly goes to show that he is not coming out with the truth and he is deliberately evading to admit the contents of Ex.P.11. The say of this witness that properties standing in the names of his father and his uncles were included in the schedule of Ex.P.11 just for confirmation of ownership of these properties is also not believable, because there is no such confirmation made in Ex.P.11. The evidence of this witness is contrary to the contents of Ex.P.11. It is also clearly admitted by this witness DW-2 that nowhere in Ex.P.11 it was mentioned specifically that those properties belonged to his father and his uncles were all their own self acquired properties. Hence, there is a probability in the case of the plaintiffs that since those properties including the suit Item No.1 were acquired out of joint income as such they were included in the Family Settlement - Ex.P.11 with the consent of their father and his brothers. Hence, from Ex.P.11 Family Settlement Agreement filed in O.S.No.02/1983, which is 35 O.S.No.1426/2012 a suit for partition filed by two brothers of Late Sri.Gopala Rao, against Late Sri.Gopala Rao and others, clearly indicates that suit Item No.1 of the suit schedule properties was treated as one of the joint family properties and same was included in the schedule to the Family Settlement Deed as one of the properties allotted to the share of Late Sri.Gopala Rao. DW-2 who is a signatory to said Ex.P.11 is the Power of Attorney Holder of Late Sri.Gopala Rao is estopped from disputing that said property is not one of the joint family properties of Late Sri.Gopala Rao and his brothers.
28. In this regard the Hon'ble High Court in the reportable decision passed in RFA No.491 of 2016 dated 19 th day of February 2024 at paragraph No.5 held as hereunder:-
" Partitioning of the self acquired property amongst all the members of the family by the matriarch raises a very strong presumption as to the subject properties having been put into a common hotchpot and that there is nothing on record to rebut the same. That being the position, there is an eminent case for the invocation of the doctrine of common hotchpot."
29. Hence, in the light of the law laid down by the Hon'ble High Court the contention of defendant No.1 and 2 cannot be accepted. Even for the sake of argument, suit Item No.1 of suit schedule properties is the self acquired property of Late Sri.Gopala Rao, the said property and other house properties standing in the names of the other brothers of Late Sri.Gopala Rao acquired the status of a joint family properties 36 O.S.No.1426/2012 since these properties were divided in the partition by means of Family Settlement as per Ex.P.11 amongst brothers of Late Sri.Gopala Rao along with the agricultural lands which are admittedly ancestral properties. All the members of the joint family to the suit O.S.No.02/1983 entered into a Family Settlement by blending house properties also, hence the law of blending of property standing in their name into the common hotchpot of joint family properties is also established.
30. Ex.D.43 is the Will Deed dated 24/01/1991 executed by Late Sri.Gopala Rao in favour of all his children by bequeathing suit schedule Item No.1 also and also properties situated in his village of Srinivasapura Taluk, Kolar District. This document is an admitted document. The recitals of Ex.D.43 is not denied by defendant No.1 and 2. As per the recitals of Ex.D.43 marked as Ex.D.43 (a) goes to show that Late Sri.Gopala Rao acquired properties through Family Settlement and also through allotment by City Improvement Trust Board. In the said recitals of Ex.D.43 (a) it is clear that even according to Late Sri. Gopala Rao the suit Item No.1 of suit schedule properties along with other suit schedule properties are the joint family properties of plaintiffs and defendant No.1 and 2. Nowhere, in this Ex.D.43 Will Deed Late Sri.Gopala Rao mentioned that suit schedule Item No.1 is the self acquired property of him and he is also bequeathing this properties amongst his children.
37 O.S.No.1426/201231. The defendant No.1 and 2 have produced Ex.D.45 Endorsement and Affidavit. According to defendant No.1 and 2 as per Ex.D.45 they have proved that suit Item No.1 is the self acquired property of their father Late Sri.Gopala Rao. The careful perusal of this document goes to show that it is a Form of a Pro Forma Affidavit. This document is not sworn affidavit before a Magistrate. Further this document is not on ₹3 /- stamp paper. This document is not dated and sworn before the Magistrate. Since this document is not an Affidavit and it is only a Pro Forma Affidavit, no reliance can be placed on this document. The defendant No.1 and 2 have not proved this document in a manner known to law by examining the witnesses to the said document and as such, no reliance can be placed on this document.
32. The defendant No.2 and 5 during the course of cross-examination of PW-1 confronted Ex.D.1 to D.21. But, PW.1 no where admitted that suit Item No.1 is the self acquired property of her father. The plaintiffs have not disputed allotment of suit schedule Item No.1 to their father by the CITB. But, PW.1 has stated the source for the purchase of suit Item No.1 came from the village funds. PW-1 has not disputed the alienation of portion of suit schedule Item No.1 by her father. In the cross- examination of PW-1, she has stated that she has produced Ex.P.11 and defendant No.1 and 2 have produced Will Deed for proving suit schedule Item No.1 as the joint family property of her father. PW.1 stated that suit schedule Item No.1 is the joint 38 O.S.No.1426/2012 family property of her father. PW.1 never admitted the suggestion that suit schedule Item No.1 is the self acquired property of her father. PW-1 stated in the cross-examination that all the documents with regard to proving the source of purchase of suit Item No.1 are in possession of their brother/defendant No.1 and her uncles. As already discussed, in view of Ex.P.11 and inclusion of house properties standing in the respective names of uncles of plaintiffs and their father situated in Bangalore and also in Bombay clearly evident that these properties were also got divided by putting them in common hotchpot and since they were joint family properties. There is no recitals in Ex.P.11 that house properties standing in the name of the father of plaintiffs and also their uncles are their separate self acquired properties and these properties were included to Ex.P.11 just for the confirmation of ownership. Further more, in Ex.D.43 Will Deed also, it is not mentioned that suit Item No.1 is the self acquired property of Late Sri.Gopala Rao. Hence, the plaintiffs have established that suit schedule Item No.1 and other suit schedule properties are the joint family properties of plaintiffs and defendant No.1 to 3. Hence, Issue No.1 is answered in the affirmative.
33. Issue No.2: - It is the case of defendant No.1 and 2 that their father Late Gopala Rao had executed registered WILL Deed dated 28/01/1995. The defendant No.1 and 2 have produced the said Will Deed as per Ex.D.27. Ex.D.27 is dated 28/01/1995. The plaintiffs have denied the genuineness of this 39 O.S.No.1426/2012 Will Deed. The plaintiffs have also denied the execution of this Will Deed by their father. The burden is on defendant No.1 and 2 to prove that their father Late Gopala Rao executed registered Will Deed dated 28/01/1995 in favour of defendant No.1 and 2.
34. The plaintiffs in Issue No.1 have established that suit schedule Item No.1 is also one of the joint family properties of their father. As per the findings given in Issue No.1 suit schedule Item No.1 is also joint family property of plaintiffs and defendant No.1 to 3. There is no dispute regarding the other suit schedule properties being the joint family properties of plaintiffs and defendant No.1 to 3. The defendant No.1 and 2 have only disputed suit Item No.1 by contending that suit Item No.1 is not the joint family property and it is the self acquired property of their father.
35. The Hon'ble Supreme Court in the decision reported in 1980 Supp Supreme Court Cases 298 (Kalani ( Dead) by LRs. Vs Narayanan and Others) has held that disposing of ancestral property by Will along with self acquired properties is invalid. The father has no right to make a partition by Will of joint family property amongst various members of the family except, of course, if could be made with their consent. Hence, the father of the plaintiffs cannot execute any Will in respect of the joint family properties. In this view of the matter, defendant No.1 and 2 cannot claim any rights under Ex.D.27 Will Deed.
40 O.S.No.1426/2012The said Will Deed alleged to have been executed by their father Late Gopala Rao is not valid.
36. The defendant No.1 and 2 have to prove the due execution of WILL Deed in a manner known law under Section 63(c) of the Indian Succession Act and under Section 68 of the Indian Evidence Act. The mere production of Will Deed is not sufficient. The proof of execution of Will Deed is a must. The examination of one of the attesting witnesses is mandatory. As per Section 63 (c) of the Indian Succession Act, 1925 the Will shall be attested by two or more witnesses, each of who has seen the testator signed or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
37. As per Section 68 of the Indian Evidence Act, even if it is a registered Will it has to be proved by examining one of the attesting witnesses to the said Will Deed. In the case on hand, the defendant No.1 and 2 have examined DW-3, to prove that he has signed the Will Deed Ex.D.27 as an attesting witness. But this witness, DW-.3 in the cross-examination has stated that before this witness signing Ex.D.27 as an attesting 41 O.S.No.1426/2012 witness, the signature of Gopala Rao was already affixed/was there. Further, this witness DW-3 categorically admitted that he had not seen Gopala Rao signing Ex.D.27. This admission of this witness goes to show that Late Gopala Rao has not signed in the presence of this witness to Ex.D.27 Will Deed. It is mandatory on the part of the attesting witness to be present at the time of testator signing the Will Deed and after testator signing the Will, this attesting witness has to sign the Will as personal acknowledgment and as attesting witness. But in this case, as DW-3 has not seen the testator signing the Will Ex.D.27 and Late Gopala Rao has signed the Will before this witness signing the Will Deed as attesting witness.
38. Further, this witness has not denied the suggestion that it was defendant No.1 and 2 who gave instructions to prepare Ex.D.27 Will Deed to the Deed Writer Nagendranath. To this suggestion, this witness stated that it might be. This witness has not denied the suggestion. Further, this witness also not denied the suggestion that Late Gopal Rao has not voluntarily executed the Will Deed and it was not executed by defendant No.1 and 2. To this suggestion also, this witness has expressed his ignorance and stated that it might be. So according to this witness, it was the defendant No.1 and 2 who had instructed the Deed Writer Nagendranath to prepare the Will Deed and it was defendant No.1 and 2 who got executed Will Deed. The careful perusal of evidence of DW.3 it is clear that he had not seen the testator affixing his signature on the 42 O.S.No.1426/2012 Ex.D.27 Will Deed and further, the say of this witness before he signing the Will Deed testator had already signed the Will Deed creates doubt in the execution of Will Deed by the testator. In this background, DW-3 cannot be called as an attesting witness to the Ex.D.27 Will deed. Further, the evidence of DW-3 also indicates that Will has not come into existence in normal circumstances.
39. Further, Ex.D.27 stated to have been registered on 27/05/1995 as per the seal of the Sub-Registrar on the back page of No.1. But in the last page of Ex.D.27 Will, the date is mentioned as 28/01/1995. But, on the backside of page No.1 it is mentioned that Will Deed was registered on 06/05/1995. DW.3 who is an attesting witness to Ex.D.27 Will Deed and who is supposed to have identified the testator in the office of the Sub-Registrar stated in his cross-examination that he does not know as to what happened to the Will Deed after 28/01/1995 and on what date said Will Deed was registered. In the light of the admissions made by DW.3, it is very much clear that he was not present at the time of either at the time of execution of Will or at the time of its registration.
40. The burden of proof that Will has been validly executed and it is a genuine document is on the propounder of the Will. The propounder is also required to prove that testator had signed the Will and he had put the signature out of his own free will having a sound and disposal of state of mind and 43 O.S.No.1426/2012 understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the propounder to remove the suspicion by leading sufficient evidence and cogent evidence if there exists any. In case of proof of Will, signature of testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. Whether the circumstances surrounded the execution of the Will or shrouded with a suspicious circumstances, it is the duty and obligation of the propounder to remove the suspicious by leading cogent and satisfactory evidence.
41. The Hon'ble Supreme Court in the decision reported in AIR 1959 SC 443 ( H.Venkatachala V/s B.N.Thimmajamma & Others) has held that where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, on her, that is also a circumstances to be taken into account, and in such case propounder is required to remove the suspicion and prove the case by clear and satisfactory evidence. Further, registration of the Will by itself would not sufficient to remove the suspicion. The disinheriting the natural and legal heir without any reason and without deposing in this regard in the Will are also suspicious circumstances.
44 O.S.No.1426/201242. In the case on hand, the learned counsel for plaintiffs vehemently argued that the Will setup by defendant No.1 and 2 is surrounded by suspicious circumstances. The said Will Deed is not genuine and it is fraudulently created by defendant No.1 and 2. Per contra, the learned counsel for defendant No.2 and 5 reputed arguments of the counsel for plaintiffs. The learned counsel for defendant No.2 and 5 also vehemently argued that Ex.D.27 is not created and it is a genuine Will executed by testator himself out of his own free will and out of love and affection over defendant No.1 and 2.
43. The Will is one of the most solemn document known to law. The executor of the Will cannot be called to deny the execution or to explain circumstances in which it was executed. It is therefore essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will.
44. It must be stated the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of the witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach proper conclusion on the nature of the evidence adduced by the parties.
45 O.S.No.1426/201245. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. It is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of that testator, the condition of the testator's of mind, the deposition made in the Will being an unnatural improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that testators mind was not free. In such cases the Court would naturally expect that all the legitimate suspicion should be completely removed before the document is accepted as a Last Will of the testator. In this case, the profounder defendant No.1 and 2 have not removed the doubts by clear satisfactory evidence.
46. The Hon'ble High Court in the decision reported in ILR 2008 KAR 2115 ( Sri.J.T.Surappa and another vs Sri.Satchidhanandendra Saraswathi Swamaiji Public Charitable Trust and Others) has held that when the legal heirs are disinherited, the court has to scrutinise the evidence with a greater degree of care than usual. The third step would be to find out whether the testator was in a sound state of mind and the time of executing the Will. The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of Will. The fifth of step is to consider whether the Will that is executing is in accordance with Section 63 of the Indian Succession Act read with Section 68 of the 46 O.S.No.1426/2012 Evidence Act. The test is whether the said the signature found on the Will, conveys the intention of testator to give effect to the writing as a Will. The third rule is the Will requires attestation by two or more witnesses. Attestation means the persons, who have affixed their signature as attesting witness, saw the executant, (in case of a Will in testator) sign or affix his mark to the instrument. Not only the attesting witness should sign the Will in the presence of the testator, but they should also see with their eyes the testator signing the instrument. If this requirement of law is not fulfilled and then Will is not proved.
47. The Hon'ble Supreme Court in the decision reported in (2007) 9 Supreme Court Cases 728 (BENGA BEHERA AND ANOTHER Vs. BRAJA KISHORE NANDA AND OTHERS) has held that applicability of Section 71 of Evidence Act and mode of proof of the will is concerned. In the present case, only one of the two attesting witnesses appearing under stating that he had put his signature on the Will even though the testatrix had not affixed her LTI thereon, he expressing his unawareness of any other person having attested the Will, such a witness, held, did not answer the requirements of attesting witness under Section 63 of Succession Act, 1925. Therefore, further held, he failed to prove the execution or attestation of the Will. Hence, Section 71 of Evidence Act, 1872 enabling the Will to be proved by the other evidence, held, not attracted.
47 O.S.No.1426/201248. The learned counsel for defendant No.2 and 5 vehemently argued that though evidence of DW.3 may not be sufficient to prove the Will, the Will can be proved by other evidence, through Ex.D.44. Ex. D.44 is in handwriting of Late Gopala Rao, which according to defendant No.1 and 2 the intention of the testator can be established through this document. These defendants have not proved this document in a manner known to law. These defendants have not stated anything about the existence of this document in their written statement. PW.1 has also not admitted this document in her cross-examination. When the defendants have produced Ex.D.27 Will Deed by stating that it is the Last Will of the testator, the defendant No.1 and 2 cannot rely upon this document and argue that they have proved Ex.D.27 Will Deed. The mere production of document does not amount to proof of the execution and no amount of evidence which is not based on the pleadings can be looked into and not reliable. Further more, Ex.D.44 is a document which stated to have been written in the year 1992 and Ex.D.27 Will Deed has come into existence in the year 1995. In this background also, Ex.D.44 by no stretch of imagination can be considered of proving Ex.D.27. Ex.D.27 has to be proved in a manner known to law as per the requirements of proving Will Deed as stated supra. The Will is to be approved under Section 68 of Evidence Act and the same is not proved, proving the said Will under the provisions of Section 71 of the said Act does not arise.
48 O.S.No.1426/201249. The Hon'ble Supreme Court in the decision reported in (2021) 14 Supreme Court cases 500 ( Raj Kumari and others v. Surinder Pal Sharma) has held that Section 71 of Evidence Act is applicable where attesting witnesses who were called failed to prove execution of Will in which case execution can be proved by other evidence. However, held, not applicable when only one attesting witness called and examined who failed to prove execution of will and other attesting witness was not summoned, as in the present case.
50. The recourse to Section 71 of the Indian Evidence Act can be taken only when the attesting witness either denies or does not collect execution of Will and not in a scenario where attesting witness fails to prove the execution of Will. In the case on hand, as already discussed, DW-3 who is an attesting witness to Ex.D.27 Will Deed did not deny execution of Will Deed nor stated that he does not recollect the same. DW.3 categorically admitted that he was not present at the time when the testator has affixed his signature to Ex.D.27 Will Deed. Hence, the attesting witness has not proved the execution of Ex.D.27 Will deed. Under these circumstances, the contention of the defendant No.1 and 2 that Ex.D.27 is proved by virtue of Ex.D.44 cannot be accepted.
51. The Hon'ble Supreme Court in the decision reported in 1968 SCC OnLine SC 233: AIR 1968 SC 1332 ( Gorantla 49 O.S.No.1426/2012 Thataiah V. Thotakura Venkata Subbaiah and others) has held in para No.6 as hereunder: -
" It is well- established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstances attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner. Those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction."
52. In the case on hand, DW.3 in the cross-examination has stated that in the year 1995, he was the resident of Padmanabhanagara, Gururaja Layout. This witness denied of living in the address mentioned in Ex.D.27 Will Deed during the year 1995. This witness denied his address mentioned in Ex.D.27 Will Deed. This witness further in the cross- examination admitted that Ex.D.79 Aadhaar Card is relating to the year 2007 and he has not produced any documents in support of his address prior to 2007 and in the year 1995. DW.3 categorically stated that he was not living in the address mentioned in Ex.D.27 in the year 1995. According to DW.3, Gopala Rao was introduced to him by Deed Writer 50 O.S.No.1426/2012 Nagendranath and he was not aware of Gopala Rao prior to 28/01/1995. Further this witness clearly admitted that, he has not got confirmed about the identity of Gopala Rao by documents. Further this witness has stated when he signed Ex.D.27 signature of another attesting witness by name Ramakrishnaiah was not there.
53. The perusal of last page of Ex.D.27 Will Deed, it indicates that last portion of the Will has been subsequently typed on a different typewriter and same does not even make any reference to the testator affixing his signatures in the presence of the witnesses. The careful perusal of last page of Ex.D.27 it discloses that say of DW.1 that by using new tape in the same typewriter machine was typed cannot be accepted. There are insertions made in the last page of the Will, which is evident from the word "this will, will come into existence only after my demise" . This word is typed in a different typewriter and it is not print taken out from the printing machine. Ex.D.27 is not typed in a typing machine but it was computer typed and its print out taken in a printing machine. This material alterations made to Ex.D.27 Will also creates doubt in the suspicious circumstances surrounding in the execution of Ex.D.27 Will Deed.
54. DW.2 in the cross-examination admitted that his wife is shown as owner of the property in Ex.D.54. At the same time, DW.2 states as on the date of Ex.D.54 his wife was not the 51 O.S.No.1426/2012 owner of the property. The very showing of wife of this defendant/ DW .2 as owner of the property in Ex.D.54 also creates suspicion in the execution of Ex.D.27 Will Deed.
55. The Hon'ble Supreme Court in the decision reported in (2009) 3 Supreme Court Cases 687 ( Bharpur Singh v. Shamsher Singh) has held that burden of proof and due execution of Will is concerned and when the natural heirs disinherited and propounder taking interest in the Will. The genuineness of proving of the Will and also proving mental state of testator's mind is on the propounder. The propounder should remove all suspicious circumstances shrouding the making of the Will by cogent and convincing explanation.
56. In the case on hand, admittedly Ex.D.43 Will Deed dated 24/01/1991, which is admittedly executed by Gopala Rao, he had bequeathed suit Item No.1 of the suit schedule properties in favour of both the plaintiffs and defendant No.1 to
3. There is absolutely no reason for excluding the daughters in Ex.D.27 Will Deed dated 28/01/1995. The exclusion of the daughters/plaintiffs in Ex.D.27 Will Deed is one of the suspicious circumstances surrounding the execution of Will Ex.D.27. The defendant No.1 and 2 admittedly living with their father and had close access to their father. The say of defendant No.1 and 2 that they were not aware of execution of Ex.D.27 Will Deed till the death of their father also becomes doubtful.
52 O.S.No.1426/201257. It is the case of defendant No.1 and 2 that their father also executed registered Lease Deeds in favour of their respective wives in respect of suit schedule Item No.1. According to these defendants, their father executed a Lease Deed in favour of the wife of defendant No.1 for a period of 90 years on 19/03/1994 and in favour of the wife of defendant No.2 for a period of 99 years on 14/06/1994. The very act of the registered Lease Deeds in favour of the wives of defendant No.1 and 2 coming into existence with respect of suit Item No.1 of the suit schedule properties and Gopala Rao letting out suit schedule Item No.1 of the suit schedule properties in favour of defendant No.4 and 5 for a period of 90 years and 99 years and defendant No.1 and 2 being the attesting witnesses to the said Lease Deeds said to have been executed in favour of the wives of defendant No.1 and 2 also creates suspicious circumstances regarding the execution of Ex.D.27 Will Deed by Gopala Rao. The case of plaintiffs that defendant No.1 and 2 being not happy with their father in bequeathing portion of suit schedule Item No.1 in favour of plaintiffs and defendant No.3 have played an active role in bringing into existence of Lease Deeds solely with intention to deprive the rights of plaintiffs and defendant No.3 of the bequests made by the father in their favour in the Will Deed dated 24/01/1991 marked as Ex.D.43 is more probable and there is a probability in the case of plaintiffs.
58. DW-1 in the cross-examination clearly admitted that rent was fixed for ₹600/- per annum. This witness also admitted 53 O.S.No.1426/2012 Ex.D.28 Lease Deed was executed within four months from the date of execution of Ex.D.67 in respect of remaining portion of suit Item No.1 of suit schedule properties.
59. Further more, the conduct of defendant No.1 and 2 in filing applications before the Tahasildar of Srinivasapura Taluk as per Ex.P.35 and P.36 for transfer of Pahani and Katha in their favour in respect of agricultural lands which are said to have been bequeathed in favour of the daughters as per Ex.D.27 by suppressing the existence of daughters and showing defendant No.4 and 5 the legal heirs of late Gopala Rao clearly indicates that defendant No.1 and 2 with an intention to deprive share of the plaintiffs and defendant No.3 in the suit schedule properties also becomes suspicious circumstances shrouding in the execution of Ex.D.27 Will Deed by the testator Gopala Rao.
60. The defendant No.1 and 2 have not brought to the notice of plaintiffs regarding the Will Deed dated 28/01/1995 Ex.D.27 till the end of 2011 and it was only in the 1 st week of December 2011 along with Ex.P.33 in the courier, the certified copy of the Will Deed dated 28/01/1995 was sent by the defendant No.2 to the plaintiffs. The plaintiffs have placed Ex.P.13 and P.14 e-mail correspondences made with defendant No.1 and 2 requesting for the documents including the earlier Will. The defendant No.1 and 2 have not furnished the copies of lease deeds and also not provided the documents sought as 54 O.S.No.1426/2012 per Ex.P.13 and P.14 to the plaintiffs. This conduct of defendant No.1 and 2 clearly also indicates that the Will Deed Ex.D.27 dated 28/01/2095 has not come into existence in normal circumstances. The case of plaintiffs in this regard is more probable and plausible.
61. Hence, in view of the suspicious circumstances surrounding the execution of Ex.D..27 Will Deed by Gopala Rao, the defendant No.1 and 2 failed to prove that their father Gopala Rao executed Ex.D.27 Will Deed on 28/01/1995 in respect of suit schedule property in their favour. Hence this Issue No.2 is answered in the negative.
62. Issue No.3: - It is the case of defendant No.2 that suit is bad for non-joinder of necessary parties. Admittedly during the pendency of the suit defendant No.4 and 5 who are the wives of defendant No.1 and 2 were impleaded to the suit. The defendant No.4 and 5 are the wives of defendant No.1 and 2 of this case. The defendant No.1 and 2 have not stated anywhere as to who are the necessary parties ought to have been impeded as defendants to the suit. These defendants have not given any details of the persons who are left out of the suit by the plaintiffs. The plaintiffs in this case have made all the legal representatives of deceased Sri.Gopala Rao. Hence, the defendant No.1 and 2 failed to prove that suit is bad for non- joinder of necessary parties. Hence, this Issue No.3 is answered in the negative.
55 O.S.No.1426/201263. Issue No.5: - The defendant No.1 and 2 in their written statement have pleaded that plaintiffs were regularly visiting their father and they were aware of all the actions of Sri.Gopala Rao. The plaintiffs were aware of the sale of portion of suit Item No.1. The plaintiffs were well aware of the sale and all the subsequent events that took place during the life time of Sri.Gopala Rao. The plaintiffs being aware of the sale, not challenging the sale deed, not making the purchaser a party to the suit, and not seeking the amendment restricting their claim to the extent will not cure the effect of the plaint. Any amount of legal acrobatics attempted by the plaintiffs will not cure the legal lacuna as far as item number one is concerned. The suit of the plaintiffs as far as Item No.1 is concerned is hopelessly barred by law of limitation. The amendment carried out by the plaintiffs is totally contrary to their earlier pleadings. The plaintiffs have failed to cure the defect in the original plaint by seeking the amendment.
64. The defendant No.4 and 5 in their written arguments have argued that suit of the plaintiffs is barred by limitation. If the property is an ancestral property generally period of limitation as mentioned in Article 109 of Limitation Act is applicable. The relief of declaration sought by the plaintiffs is barred by limitation. If the property is a self acquired property then the period of limitation is three years "when the right to sue first accrues" the plaintiffs had the knowledge of execution of Lease Deeds in favour of defendant No.4 and 5 even prior to 56 O.S.No.1426/2012 the filing of the suit as per Ex.P.2 and P.2 (a) and also letters addressed to defendant No.4 and 5 as per Ex.P.16 to Ex.P.19.
65. The suit is filed for the relief of partition by the plaintiffs, who are the sisters of defendant No.1 and 2 in respect of joint family properties of their father Sri.Gopala Rao. It is well settled law that in a suit for partition there is no period of limitation as the cause of action in a suit for partition is a recurring cause of action as long as there is no partition in the family. It is an admitted fact that there is no partition in the family of plaintiffs and defendant No.1 to 3 during the life time of their father or after his demise. The defendant No.1 and 2 have not pleaded anywhere in their written statement that plaintiffs have been ousted from the enjoyment of joint family properties. The legislature has not set a specific period of limitation for filing a suit for partition. This is because partition is considered an incident attached to the property, and there is always a recurring cause of action for a co-sharer to seek partition when they decided not to keep their share joint with others. Therefore, the period of limitation is dependent on the will of the co-sharer. The cause of action for a partition suit arises whenever he a co- sharer decides to seek partition. This means that as long as a co-sharer has not relinquished their right to seek partition, they can file a suit at any time. In a suit for partition there should be a specific relief of ouster, such a plea is conspicuously missing in the present suit. Even otherwise when it is proved that there is no division of properties belonging to the family, the right to 57 O.S.No.1426/2012 file suit for partition continues to exist as long as the property remains undivided and therefore suit filed for partition is well within time, not barred by law of limitation.
66. The learned counsel for defendant No.2 and 5 five vehemently argued that the challenge to the Lease Deeds made by virtue of amendment by the plaintiffs would relate back to date of filing of application i.e., from 04/03/2023. Further, he argued that this fact has been made clear by the Hon'ble High Court in the Order passed in W.P.No.20515/2023 dated 19/01/2024. The Hon'ble High Court in its Order observed that all the rival contentions on all issues, including the question/issue of limitation or kept open and no opinion is expressed on the same. The Hon'ble High Court observed that the date of filing of the application shall be considered from the date of application under Section 21 of Limitation Act.
67. It is relevant to note that, under Article 109 of Limitation Act deals with a suit by a Hindu governed by Mitakshara Law, to set aside his father's alienation of ancestral property. The period mentioned is 12 years from the date on which the alienee has taken possession. In the case and there is no material to indicate that what date Lessees, i.e., defendant number No.4 and 5 have taken possession pursuant to the Lease Deeds. DW.1 in his evidence has deposed that even to this day the Lease Deed properties are in physical possession and enjoyment of defendant No.1 and 3 and they are remitting 58 O.S.No.1426/2012 the property tax to the concerned Authority as and when the same is due and payable. This admission goes to show that defendant No.1 and 2, who are in possession and enjoyment of leased portions and there is no material to indicate that alienees, i.e., defendant No.4 and 5 have taken possession pursuant to the Lease Deeds.
68. As per the case of defendant No.1 and 2 their father has executed the Lease Deeds in favour of their respective wives. The lease does not transfer ownership. Instead, it allows the tenant to use the property owned by another person/landlord for a specific period. A sale transfers full ownership, a lease provides temporary use. Hence, the limitation as contemplated under Article 109 has never commenced and the question of suit being barred by law of limitation does not arise.
69. It is the case of defendant No.1 and 2 that plaintiffs have knowledge of Lease Deeds because they used to visit their father very often. It is also the case of defendant No.1 and 2 that plaintiffs have deemed knowledge about the Lease Deeds from the month of December 2011, when they received the copy of alleged Will dated 28/01/1995 from defendant No.2 through courier. Even otherwise from the date of the filing of interlocutory application or from the date of knowledge as per the information provided by defendant No.2 in the courier, the 59 O.S.No.1426/2012 suit is filed within the Limitation. The present suit is filed 04/03/2023.
70. The defendant No.1 and 2 have produced Ex.D54 Rental Agreement dated 01/11/1997 executed by defendant No.4, the wife of defendant No.1 in favour of M/s. Digital Equipment India Ltd, the plaintiffs have deemed knowledge of the Lease Deeds. In Ex.D.54 Rental Agreement neither plaintiff No.1 nor her husband was working in the said company, was a signatory to the said document. DW.2 during the course of his cross-examination in page No.21 admitted that Ex.D.54 Rental Agreement was executed by his wife in favour of Digital Equipment India Ltd. DW-2 clearly admitted as on the date of Ex.D.54 his wife was not the owner of that property. DW.2 admitted that in Ex.D.54 his wife is referred to as owner of the property. DW.2 also clearly admitted that there is no reference to Ex.D.67 Lease Deed in Ex.D.54 Rental Agreement. DW.2 denied the suggestion that since his brother-in-law/husband of plaintiff No.1 was working in the said Company deliberately this witness omitted to mention regarding the registered Lease Deed Ex.D..67 in Ex.D.54 Rental Agreement. DW.2 also denied the suggestion that himself and his father defendant No.2 completely put the plaintiffs in darkness about both Lease Deeds. The admission made by DW.2 regarding mentioning of registered Lease Deed Ex.D.67 in Ex.D.54 Rental Agreement establishes that there is a probability in the case of plaintiffs regarding defendant No.1 and 2 putting the plaintiffs in 60 O.S.No.1426/2012 darkness about the execution of Lease Deeds in favour of their wives by their father. Hence, the defendant No.1 and 2 failed to prove that suit of the plaintiff is barred by law of limitation. Accordingly, Issue No.5 is answered in the negative.
71. Recasted Additional Issue No.1 and Additional issue No.2:- Since both these issues involves common discussion and interlinked with each other, hence these issues are taken together for consideration to avoid repetition and discussion of evidence.
72. The plaintiffs have contended that Lease Deeds dated 19/03/2094, 14/06/1994 and Rectification Deed dated 14/06/1994 are illegal, void and not binding on them.
73. The defendant No.1 and 2 have contended in their additional written statement that their father Sri.Gopala Rao executed registered Lease Deeds in favour of their wives in respect of suit Item No.1 of suit schedule properties. The burden is on the defendant No.1 and 2 to prove the execution of the said Lease Deeds in favour of defendant No.4 and 5 by Late Gopala Rao. The plaintiffs have denied the execution of Lease Deeds by their father in favour of the wives of defendant No.1 and 2 by contending that Lease Deeds are fabricated and not executed by their father voluntarily and those Lease Deeds are not genuine documents. They have also pleaded that Lease 61 O.S.No.1426/2012 Deeds have come into existence under suspicious circumstances.
74. The defendant No.1 has not produced original of Lease Deed dated 19/03/1994. The defendant No.1 has produced only certified copy of Lease Deed as per Ex.D.67. Ex.D.28 is the Lease Deed dated 14/06/1994 executed in favour of the wife of defendant No.2. The defendant No.1 and 2 except producing Ex.D.28 and Ex.D.67 have not led any other evidence in support of these documents. Further more, it is interesting to note that, the witnesses to said Ex.D.28 are nothing but defendant No.1 and his wife/defendant No.4, who are the husband and wife. The defendant No.5 who is lessee has not stepped into the witness box and not adduced any evidence on this document. The plaintiffs have not admitted this document. Under these circumstances, this document ought to have been proved by leading necessary evidence. But, except producing this document the defendant No.2 has not adduced any other further evidence with respect of proving this document. The defendant No.1 has produced Ex.D.67, which is the certified copy of Lease Deed. The defendant No.1 also except producing this document has not adduced any further evidence for proving this document. The defendant No.1 has not produced original of the Lease Deed and produced only certified copy of the Lease Deed. DW.2 has stated that Lease Deed has been lost. DW.2 has not given proper explanation for non-production of original Lease Deed executed in favour of his 62 O.S.No.1426/2012 wife. Since it is well established law that the production of a document is not sufficient proof of execution of document. The witnesses to this document are defendant No.2 and one K.Rama Rao. The independent witness K.Rama Rao is not examined by defendant No.1 and 2. The defendant No.2, who is an attesting witness, in the light of the fact that in respect of Lease Deed in favour of defendant No.5/wife of defendant No.2, defendant No.1 and 4 and other witnesses. Hence, the evidence of defendant No.1 and 2 with regard to execution of Lease Deeds in favour of their respective wives cannot be considered for proving the Lease Deeds. The non-examination of independent witnesses to the Lease Deeds is also fatal to case of defendant No.1 and 2.
75. The defendant No.1 and 2 have not examined defendant No.4 and 4 who are lessees under Ex.D.28 and Ex.D.67 Lease Deeds. The non-examination of the wives of defendant No.1 and 2 under the facts and circumstances of the case an adverse inference has to be drawn that if they have entered into the witness box case put forward by their respective husbands as false and true facts would have been revealed. An adverse inference can easily be drawn that deliberately the wives of defendant No.1 and 2 have not been examined in the case.
76. The Hon'ble Supreme Court in the decision reported in AIR 1999 SC 1441 (Vidhadhar v. Manikikrao and another) 63 O.S.No.1426/2012 and also in (2010) 10 Supreme Court Cases 512 ( Man Kaur V. Hartar Singh Sangha) has held that party to a suit not entering into the witness box, not offering for himself for cross- examination, presumption arises that case set up by him is not correct.
77. Further, the circumstances under which these documents have come into existence, the terms of very documents and the fact of defendant No.1 and 2 being the witnesses for the said Lease Deeds executed in favour of defendant No.4 and 5 respectively clearly indicate that these documents have not come into existence in normal and natural circumstances. It is an admitted fact that Late Gopala Rao had given portion of suit schedule Item No.1 of suit schedule properties in favour of plaintiffs and defendant No.3 under Ex.D..43 Will Deed. The Lease Deeds have come into existence immediately after the execution of Will Deed dated 24/01/1991 Ex.D.43. The very execution of Lease Deeds for a period of 90 years and 99 years in favour of the wives of defendant No.1 and 2 prima facie establishes that it is abnormal. The case of plaintiffs in this regard more probable and the case of plaintiffs that defendant No.1 and 2 in order to snatch valuable property situated in Jayanagar, Bangalore have conspired together and under undue influence with the sole intention of defeating the rights of plaintiffs and bequest made in their favour is more probable and established. Further more, in the Lease Deeds the rent shown is very meagre for a 64 O.S.No.1426/2012 valuable property situated in the locality of Jayanagara, Bangalore and lease period fixed for a period of 90 years and 99 years also looks very abnormal. Admittedly, in the Lease Deeds the lessees and witnesses are the daughters-in-law and sons of late Gopala Rao, who was aged about 80 years at the time of execution of Lease Deeds and was solely dependent on defendant No.1 and 2, who were in a dominating position to the will of late Gopala Rao. The circumstances execution of Ex.D.43 Will Deed, later on execution of Lease Deeds and later execution of Ex.D.27 Will Deed clearly indicates that Lease Deeds have not been executed out of free will and volition of Late Gopala Rao and these documents came into existence in order to defeat the shares of plaintiffs in the suit schedule Item No.1, which is admittedly valuable property.
78. The Lease Deeds are not executed by late Gopala Rao for meeting any family legal necessity. DW-1 in the cross- examination at page No.23 admitted that his father had no necessity for execution of Lease Deeds in favour of his wife and also in favour of the wife of his brother in the year 1993 to 1994. The plaintiffs are not parties to the Lease Deeds executed in favour of defendant No.4 and 5. In the light of the plaintiffs proving that suit schedule Item No.1 is also one of the joint family properties, plaintiffs having share in the said suit Item No.1 also by birth, hence the Lease Deeds are not binding on the plaintiffs. Hence, as rightly contended by the plaintiffs Lease Deeds are not binding on them and Lease Deeds are also null 65 O.S.No.1426/2012 and void. Hence, Additional issue No.1 is answered in the negative and Additional issue No.2 is answered in the affirmative.
79. Issue No.4 & 6: - The plaintiffs have proved Issue No.1 and established that suit schedule properties are all the joint family properties. The defendant No.1 and 2 failed to prove Issue No.2. The defendant No.1 and 2 also failed to prove Additional Issue No.1. The Hon'ble Supreme Court in the decision reported in (2020 ) 9 SCC 1 ( Vineetha Sharma v. Rakesh Sharma and Ors) has held that daughters are also to be treated as coparceners along with male issues and daughters also have equal share in the joint family properties. Hence, in the light of the law laid down by the Hon'ble Supreme Court and also in the light of the findings given in Issue No.1 , 2 and Additional issue No.1 and 2, the plaintiffs and defendant No.1 to 3 each are entitled to 1/5 th equal share in all the suit schedule properties by metes and bounds. In the same way, the plaintiffs are also entitled to the relief sought in the suit. Accordingly, issue No.4 and 6 are answered in the affirmative.
80. Issue No.7: In view of the above discussions, this court proceed to pass the following:-
ORDER Suit of the plaintiffs is decreed.66 O.S.No.1426/2012
It is declared that both plaintiffs have got 1/5 th equal share each by metes and bounds in all the suit schedule properties.
It is declared that registered Lease Deed dated 19/03/1994 registered as Document No.3602/1993-94 registered in the office of Sub-Registrar, Jayanagara, Bengaluru; registered Rectification Deed dated 14/06/1994 registered as Document No.767/1994-95 registered in the office of Sub-Registrar, Jayanagara, Bengaluru and the registered Lease Deed dated 14/06/1994 registered as Document No.766/1994-95 registered in the office of Sub- Registrar, Jayanagara, Bengaluru are all hereby declared as null and void and not binding on the plaintiffs.
In view of the close relationship of the parties to the suit, the parties are directed to bear their own costs.
Draw preliminary decree accordingly.
(Dictated to the Stenographer Grade-I, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, on this the 7th day of December, 2024) (B.DASARATHA) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.67 O.S.No.1426/2012
ANNEXURE List of witnesses examined for plaintiffs:
PW.1 : Smt. Radha Samprati List of documents exhibited for plaintiffs:
Ex.P.1 : Certified copy of Registered Will dated 24.01.1991 Ex.P.1(a) : Typed copy of Ex.P.1 Ex.P.2 : Certified copy of Registered Will dated 08.01.1995 Ex.P.2(a) : Typed copy of Ex.P.2 Ex.P.3 & 4 : Certified copies of Encumbrance Certificate Ex.P.5 : RTC Ex.P.6 : Mutation Register Extract Ex.P.7 : Tax Paid Receipt Ex.P.8 : Death Certificate of Gopala Rao Ex.P.9 : Certified copy of Plaint in O.S.No.2/83 Ex.P.10 : Certified copy of Joint Memo in O.S.No.2/1983 Ex.P.11 : Certified copy of Memorandum of Final Settlement Agreement of Properties Ex.P.12 : Certified copy of the Order Sheet in O.S. No.2/1983 Ex.P.13 & 14: 2 OnLine G-Mail Messages Ex.P.15 : Certificate under Section 65B(4) of the Indian Evidence Act Ex.P.16 & 17: 2 Postal Receipts Ex.P.18 & 19: 2 Postal Acknowledgments Ex.P.20 to 22: 3 Demand Register Extracts Ex.P.23 : Tax Paid Receipt Ex.P.24 to 32: 9 RTCs Ex.P.33 : Postal Cover Ex.P.34 : Certified copy of Document Ex.P.35 : True copy of Application Ex.P.36 : True copy of Genealogical Tree 68 O.S.No.1426/2012 List of witnesses examined for defendants:
DW.1 : Sri. G.Murali Rajendra
DW.2 : Sri. G.Viswanath
DW.3 : Sri. D.R.Sathyanarayana Rao
List of documents exhibited for defendants:
Ex.D.1 : Details of Employment of G.Gopal Rao Ex.D.1(a) : Signature of Ex.D.1 Ex.D.2 : Allotment Letter dated 13/16.01.1958 Ex.D.3 to 11: Receipts Ex.D.12 : Memo dated 03.12.1958 Ex.D.13 : License dated 05.11.1971 Ex.D.14 : Estimate dated 27.12.1972 Ex.D.15 : Sale Deed 23.01.1979 Ex.D.15(a) : Portion in Ex.D.15 Ex.D.16 : Certified copy of Sale Deed dated 10.01.1979 Ex.D.16(a) : Copy of Sale Deed dated 10.01.1979 Ex.D.17 : License dated 04.01.1950 Ex.D.18 : Certificate Ex.D.19 : Form 9 Ex.D.20 : Photo Ex.D.21 : Photo Ex.D.21(a) : Portion in Ex.D.21 Ex.D.22 : Photo Ex.D.23 & 24: Inland Letters Ex.D.23(a) : Signature in Ex.D.23 Ex.D.24(a) : Signature in Ex.D.24 Ex.D.25 : Photo Ex.D.26 : Inland Letter Ex.D.27 : Will Deed dated 28.01.1995 with 3 Sketches Ex.D.27(a) to (h): Signatures in Ex.D.27 Ex.D.27(i) : Signature of DW-3 Ex.D.28 : Lease Deed dated 14.06.1994 Ex.D.29 : Khatha Bifarcation Order dated 18.06.1996 69 O.S.No.1426/2012 Ex.D.30 : Khatha Certificate Ex.D.31 to 35: 5 Tax Paid Receipts Ex.D.36 : Assessment Register Extract Ex.D.37 & 38: 2 Khatha Certificates Ex.D.39 : Assessment Register Extract Ex.D.40 : Notice issued by BMP dated 05.01.1998 Ex.D.41 : Uttara Pathra Ex.D.42 : Tax Paid Receipt Ex.D.43 : Will Deed dated 24.01.1991 Ex.D.43(b) : Site Plan Ex.D.44 : Letter dated 23.04.1992 Ex.D.44(a) : Typed copy of Ex.D.44 Ex.D.45 : Endorsement Ex.D.46 : Special Power of Attorney Ex.D.47 : Handwritten Sketch Ex.D.48 to 51: Khatha Certificates & Khatha Extracts Ex.D.52 & 53: 2 Tax Paid Receipts Ex.D.54 : Rental Agreement dated 01.11.1997 Ex.D.55 to 62: 8 Covering Letters for the payment of rents Ex.D63 : Letter dated 28.08.1998 Ex.D.64 & 65: 2 Unopened Postal Covers Ex.D.66 : Statement of Housing Loan Account of defendant No.4 Ex.D.67 : Certified copy of Lease Deed dated 19.03.1994 Ex.D.68 : Certified copy of Rectification Deed dated 14.06.1994 Ex.D.69 : Postal Cover Ex.D.70 : E-mail dated 08.01.2012 Ex.D.71 : E-mail dated 01.01.2012 Ex.D.72 : Postal Cover Ex.D.73 : E-mail dated 11.01.2012 Ex.D.74 : E-mail dated 11.01.2014 Ex.D.75 : Postal Cover Ex.D.76 : E-mail dated 08.01.2012 Ex.D.77 : E-mail dated 01.01.2012 Ex.D.78 : Postal Cover Ex.D.79 : Notarised copy Aadhaar Card 70 O.S.No.1426/2012 of Sathyanarayana D.R. Ex.C.1 : Objection to I.A.No.11/2017 in O.S.No.1426/2012 Ex.C1(a) : Portion in Ex.C.1 XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.Digitally signed by DASARATHA
DASARATHA B
B Date:
2024.12.12
11:50:02 +0530