Bangalore District Court
Sri.A.Adinarayana vs ) Sri.Rangappa on 15 October, 2022
1 O.S.No.5554/1998
KABC010046831998
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 15th day of October 2022
PRESENT: Sri. D.P. Kumara Swamy, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.NO.5554/1998
PLAINTIFF SRI.A.ADINARAYANA
S/o.late Sri.Vasedasanna
Aged about 72 years
R/at No.116/1, 1st Main, 1st Stage
West of Chord Road, Industrial Town
Rajajinagar, Bangalore -560 010.
(By Pleader Sri C.N. Krishna Reddy)
/Vs/
DEFENDANTS 1) SRI.RANGAPPA
Since deceased by his LRs.,
1(A). Smt.Saraswathi
W/o.late Sri.Nagaraj
Daughter-in-law of 1st Defendant
R/at No.51/A, 1st Main, 6th Phase
WOC Road, Maha Ganapathi Nagar
Bangalore -560 044.
1(B). Sri.Kodandarama
S/o.late Sri.Rangappa
2 O.S.No.5554/1998
No.11, 1st Cross, Nagarabhavi Circle
Nagarabhavi, Bangalore -560 072.
1(C). Sri.Venkatesh
S/o.late Sri.Rangappa
No.11, 1st Cross, Nagarabhavi Circle
Nagarabhavi, Bangalore -560 072.
D1(A)d : Smt.N.Padma
D/o.late Sri.Nagaraj
Aged about 40 years.
D1(A)e : Sri.N.Sathyarnarayana
S/o.late Sri.Nagaraj
Aged about 38 years.
D1(A)f : Sri.N.Raghu
D/o.late Sri.Nagaraj
Aged about 36 years.
All are R/at New No.51/A, Old No.116/3
1st Main Road, 6th Phase
West of Chord Road
Mahaganapathinagar,
Bangalore -560 044
2) SRI.RANGAPPA @ CHIKKARANGAPPA
Since Deceased by his LRs.,
D2(a) : Sri.Ranga @ Rangaswamy
S/o.late Sri.Rangappa @
Chikkarangappa
Aged about 55 years.
(b) : Kum.Radhamma
D/o.late Sri.Rangappa @
Chikkarangappa
Aged about 52 years.
3 O.S.No.5554/1998
(c) : Sri.Chandrashekar
S/o.late Sri.Rangappa @
Chikkarangappa
Aged about 49 years.
(d) : Sri.Gopi @ Gopikrishna
Since deceased by his LRs.
D2(d)(a) : Smt.Arathi @ Veena
W/o.late Sri.Gopi @ Gopikrishna
Aged about 38 years.
(b) : Mr.Vijaya Vinith
S/o.late Sri.Gopi @ Gopikrishna
Aged about 16 years.
(c) : Ms.Spurthi
D/o.late Sri.Gopi @ Gopikrishna
Aged about 14 years.
Defendants No.2d(b & c) LRs are minor
children and represented by their mother
and natural guardian Smt.Arathi @ Veena.
All are R/at No.499, 3rd Main Road
Bhavaninagar
Gavipuram Guttahalli,
Bangalore -560 019.
3) Sri.D.Rangappa @ Balarangappa
Since Deceased by his LRs.,
D.3 (a) : Smt.Lakshmidevamma
W/o.late Sri.D.Rangappa @
Balarangappa
Aged about 70 years.
4 O.S.No.5554/1998
(b) : Smt.Chandramma
D/o.late Sri.D.Rangappa @
Balarangappa
Aged about 45 years.
(c) : Sri.Harisha @ Babu
Since deceased by his LRs.
D.3C(a) : Smt.Nirmala
W/o.late Sri.Harish @ Babu
Aged about 40 years.
(b) : Mr.Gowtham
S/o.late Sri.Harish @ Babu
Aged about 13 years.
(c) : Mr.Mukesh
S/o.late Sri.harish @ Babu
Aged about 9 years.
Defendants No.3(C)(b&c) are minor
children and LRs., of D3(A), Reptd.by their
mother and natural guardian
Smt.Nirmala.
D3 (d) : Sri.Keshava
S/o.late Sri.D.Rangappa @
Balarangappa
Aged about 36 years.
D3(e) : Sri.Krishna
S/o.late Sri.D.Rangappa @
Balarangappa
Aged about 35 years.
All are R/at No.51/A, 1st Main Road
6th Phase, West of Chord Road
Mahaganapathi Nagar,
Bangalore -560 044.
5 O.S.No.5554/1998
4) SRI.D.KONDAPPA
Since deceased by his LRs.,
D4(a) : Smt.Shobha
W/o.late Sri.D.Kondappa
Aged about 48 years.
(b) : Sri.Ranga
S/o.late Sri.D.Kondappa
Aged about 29 years.
(c) : Sri.Pavan Kumar
S/o.late Sri.D.Kondappa
Aged about 27 years.
(d) : Smt.Jothi
D/o.late Sri.D.Kondappa
Aged about 20 years.
All are R/at No.37, 2nd Main Road
Mother Block, Bomboo Bazar
Mysore.
5) SMT.MANGAMMA (Since deceased)
W/o.late Sri.Vase Dasanna
R/at No.116/3, New No.51/8
1st Main, 6th Phase
West of Chord Road,
Bangalore -560 044.
6) SMT.LAKSHMIDEVAMMA
W/o.late Sri.Krishna Murthy
D/o.late Sri.Vasedasanna
Aged about 75 years.
7) SMT.PADMAVATHI
W/o.Sri.M.Prasad
D/o.late Sri.Vase Dasanna
Aged about 60 years.
6 O.S.No.5554/1998
Both are R/at No.77, 22nd Cross
Nandini Layout, T.Narasipura Road
Mysore -570 001.
[ By Pleader Sri. H.V. Devaraj for D1(a),
1((A)d, D1(A)c, D1(A)b, D2(a), 2(c), 3(a) to
3(d), D4(a) to (d)]
[By Pleader Sri Ramachandrappa for D-5]
[By Pleader Sri N. Nanjundaswamy for
D-6]
[By Pleader Sri Manjunatha N.S. for D-7]
Date of Institution of the suit : 17.07.1998
Nature of the Suit : Partition
Date of commencement of
recording of evidence : 19.02.2020
Date on which the Judgment
was pronounced : 15.10.2022
Year/s Month/s Day/s
Total Duration : 24 02 10
(D.P. KUMARA SWAMY)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
7 O.S.No.5554/1998
JUDGMENT
This is a suit for partition and separate possession.
2. The pleaded facts of the case of the plaintif may be stated to the following efect :
2.1 A property bearing site No.3, House No.116/3 (New No.51/A) in Sy.No.29/1 of the Shivanahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore City, which is more fully described in the schedule of the plaint is the suit property.
2.2 One late Sri Vase Dasanna @ Dasappa had purchased the suit property in the year 1960.
Before purchasing the suit property he had sold a property at Yedaki Village, Tadapatri Taluk 8 O.S.No.5554/1998 Ananthapur District, Andhra Pradesh State. He had used the sale consideration amount from sale of said property at Yedaki Village to purchase the suit property.
2.3 The plaintif Sri Adinarayana, the defendant No.1 late Sri Rangappa, the defendant No.2 late Sri Rangappa @ Chikkarangappa, the defendant No.3 Sri D. Rangappa @ Balarangappa, the defendant No.4 late Sri D. Kondappa are the sons, the defendant No.5 late Smt. Mangamma is the wife, the defendant No.6 Smt. Lakshmidevamma and the defendant No.7 Smt. Padmavathi are the daughters of late Sri Vase Dasanna.
2.4 The relationship between the plaintif and the defendants may be stated to the following efect: 9 O.S.No.5554/1998
(i) During the pendency of the suit, the defendant No.1 Sri Rangappa died and his L.Rs are brought on record as defendant Nos.1(A) to D1(C).
The defendant No.1(A) also died during pendency of the suit and her L.Rs are brought on record as defendant No.1(A)d to D1(A)f.
(ii) During the pendency of the suit, the defendant No.2 Sri Rangappa @ Chikkarangappa also died. His L.Rs are brought on record as defendant No.2(a) to D2(d). During the pendency of the suit, the defendant No.2(d) died and his L.Rs are brought on record as defendant No.2(d)(a) to D2(d)(c).
(iii) During the pendency of the suit, the defendant No.3 Sri D. Rangappa @ Balarangappa died and his L.Rs are brought on record as 10 O.S.No.5554/1998 defendant No.3(a) to D3(c). During the pendency of the suit, the defendant No.3(c) died and his L.Rs are brought on record as defendant No.3C(a) to D3C(e).
(iv) The defendant No.4 Sri D. Kondappa died during the pendency of the suit and his L.Rs are brought on record as defendant No.4(a) to D4(d). 2.5 The plaintif and the defendants constitute joint Hindu family. The suit property is the joint family property of the plaintif and the defendants. 2.6 The defendants were residing in the suit property and the defendants are collecting rents from the tenants in the suit property. 2.7 The defendants have deprived the share of the plaintif in the suit property.
11 O.S.No.5554/19982.8 The plaintif demanded the defendants repeatedly to efect partition in the suit property and to give to the plaintif his share in the suit property. Since the oral requests did not yield any results, ultimately, the plaintif got issued a legal notice against the defendants on 10-10-1996. The said notice is served on the defendants. But, they have not complied with the request in the said notice.
2.9 The plaintif is having 1/6th share in the suit property. The plaintif has paid a fixed Court fee of Rs.200/- on the plaint under Sec.35(2) of Karnataka Court Fees and Suits Valuation Act, 1958. 2.10 The above are the facts constituting the cause of action for the suit. Hence, this suit. 12 O.S.No.5554/1998
3. The pleaded facts of the case of the defendant No.4(a) to 4(c) may be stated to the following efect :
3.1 To the knowledge of the plaintif, the plaintif has filed this false, frivolous and vexatious suit.
3.2 The plaintif ought to have paid Court fee under Sec.35(a), but, not under Sec.35(b) of the Karnataka Court Fees and Suits Valuation Act.
Hence, on this ground alone, the suit is liable to be dismissed.
3.3 The plaintif has not shown as to how the plaintif is entitled to a share in the suit property.
13 O.S.No.5554/19983.4 Late Sri Vase Dasanna had five sons. They are : (I) Sri Doddarangappa (the defendant No.1), (ii) Sri Chikkarangappa (the defendant No.2),
(iii) Sri Balarangappa @ D. Rangappa (the defendant No.3), (iv) Sri A. Adinarayana (the plaintif), and (v) Sri Kondappa (the defendant No.4). Late Sri Vase Dasanna had two daughters. They are : (I) Smt. Lakshmidevamma (the defendant No.6) and (ii) Smt. Padmavathi (the defendant No.7).
3.5 The defendant No.1 Sri Doddarangappa and his wife Smt. Narayanamma died leaving behind them, their 3 sons. They are: (i) Sri Nagaraj [the husband of the defendant No.1(a)], (ii) defendant No.1(b), and defendant No.1(c). 14 O.S.No.5554/1998 3.6 The said Sri Nagaraj [the husband of the defendant No.1(a)] had left behind (i) Smt. N. Padma, (ii) Sri N. Satyanarayana and (iii) Sri N. Raghu. Said three children of late Sri Nagaraj are not impleaded as parties to this suit. Hence, the suit is bad for non-joinder of necessary parties. 3.7 The defendant No.2 Sri Rangappa @ Chikka Rangappa died leaving behind his children namely the defendants No.2(a) to 2(d). The defendant No.2(d) Sri Gopi @ Gopikrishna died leaving behind him his wife and children namely the defendant Nos.2D(a) to 2D(c).
3.8 The defendant No.3 Sri Balarangappa @ D. Rangappa died on 30-09-2010 leaving behind him the defendants No.3(a) to 3(e). 15 O.S.No.5554/1998 3.9 The defendant No.3(c) died leaving behind him his wife and children namely, the defendant Nos.3C(a) to 3C(c).
3.10 The defendant No.4 Sri Kondappa died leaving behind him his wife and children namely, the defendant Nos.4(a) to 4(d).
3.11 Late Sri Vase Dasanna had a brother by name Sri Vase Anjaneyalu. Sri Vase Anjaneyalu has no children. Hence, late Sri Vase Anjaneyalu had brought up the plaintif as his fostered son. 3.12 Late Sri Vase Dasanna had purchased the suit property under a registered sale deed bearing document No.8/1960, Book No.I, Volume No.1877, pages No.98 to 100 dated 31-03-1960 of the office of Sub-Registrar, Bangalore North Taluk, 16 O.S.No.5554/1998 Bangalore from one Sri Sundar Raj Naidu. Thus, late Sri Vase Dasanna had become the absolute owner in possession of the site purchased by him under the said sale deed. After purchasing the site under the said sale deed, late Sri Vase Dasanna had constructed a dwelling house (RCC roof house) measuring 15 feet from East to West and 33 feet from North to South. The said site and the said house is described as the 'A' schedule in the written statement.
3.13 Since his childhood, the plaintif was residing with late Vase Anjaneyalu as the fostered son of the latter.
3.14 One of the daughters of late Sri Vase Dasanna by name Smt. Lakshmidevamma was given in marriage to one Sri Krishnamurthy. She is 17 O.S.No.5554/1998 residing with her husband in her marital house since the date of her marriage.
3.15 Another daughter of late Sri Vase Dasanna by name Smt. Padmavathi was given in marriage to one Sri Prasad. Since the date of her marriage she is residing in her marital house.
3.16 Late Sri Vase Dasanna and his said four sons (who were residing with late Sri Vase Dasanna) had met the marriage expenses of said two daughters of late Sri Vase Dasanna. 3.17 After his marriage, the first son of late Sri Vase Dasanna namely, Sri Doddarangappa started residing separately from late Sri Vase Dasanna, along with his wife and children. 18 O.S.No.5554/1998 3.18 Under the then prevailing circumstances in the family of late Sri Vase Dasanna, during his life time, late Sri Vase Dasanna had executed a registered Will bearing document No.78/1987-88, book No.3, volume No.27, pages 241-242 dated 14-08-1987 of the office of the Sub- Registrar, Rajajinagar, Bangalore, in respect of written statement 'A' schedule property. Under the said Will, late Sri Vase Dasanna had given the suit property to his three sons namely, the defendants No.2 to 4. In other words late Sri Vase Dasanna had bequeathed the written statement 'B' schedule property in favour of the defendant No.3; the written statement 'C' schedule property in favour of the defendant No.4; and written statement 'D' schedule property in favour of the defendant No.2. 19 O.S.No.5554/1998 3.19 Late Sri Vase Dasanna died on 30-11- 1988 leaving behind him the said registered Will dated 14-08-1987 and his last Will. Accordingly, the defendants No.2 to 4 have been in possession of their respective properties as per the Will, since the date of late Sri Vase Dasanna.
3.20 Sri Balarangappa @ D. Rangappa had agreed to sell a portion of the written statement 'B' schedule property measuring 15' from East to West and 27' from North to South in favour of late Sri Nagaraj [husband of the defendant No.1(a)]. 3.21 The defendant No.1(a) and her children are in possession and enjoyment of the written statement 'E' schedule property.
20 O.S.No.5554/19983.22 Late Sri Balarangappa @ D. Rangappa had constructed a RCC sheet house on the remaining portion of the written statement 'B' schedule property.
3.23 Sri Rangappa @ Chikkarangappa had constructed a RCC floor house in the written statement 'C' schedule property. After his demise, the defendant No.2(a) to D2(d) are in peaceful possession and enjoyment of the said house. 3.24 The defendant No.4 and his family members are in possession and enjoyment of the written statement 'C' schedule property. The defendant No.4(a) to (c) are in possession of the written statement 'C' schedule property. 21 O.S.No.5554/1998 3.25 Accordingly, kathas in respect of written statement 'B' to 'E' schedule properties have been changed.
3.26 Late Sri Vase Anjaneyalu died leaving behind him his only fostered son namely, the plaintif. After the death of late Sri Vase Anjaneyalu, the plaintif and his wife and children have sold the property bearing No.6 measuring 33' x 40' (which was owned and possessed by late Sri Vase Anjaneyalu, as he had purchased the same under a registered sale deed dated 26-09-1960) under a registered sale deed dated 17-08-1992. The recitals in the said sale deed dated 17-08-1992 would make it clear that the plaintif claimed himself as fostered son of late Sri Vase Anjaneyalu. 22 O.S.No.5554/1998 3.27 In view of the said Will dated 30-11- 1988 executed by late Sri Vase Dasanna in respect of suit property, the plaintif has no right to share in the suit property.
3.28 To the knowledge of the plaintif, the suit is time barred. The plaintif is not in joint possession of the suit property.
3.29 The assertions of the plaintif that the plaintif and the defendants constitute joint Hindu Family is categorically denied. The assertions of the plaintif that the suit property is the joint family property of the plaintif and the defendants is categorically denied.
3.30 The suit property was the self-acquired property of late Sri Vase Dasanna. Late Sri Vase 23 O.S.No.5554/1998 Dasanna had executed the said registered Will. Hence, the question of dividing the suit property would not arise at all.
3.31 The assertions of the plaintif that late Sri Vase Dasanna had owned and possessed an ancestral property at Yedaki Village is categorically denied.
3.32 The assertions in the plaint that the plaintif made repeated oral requests and sent a legal notice dated 10-10-1996 against the defendants are categorically denied. 3.33 There is no cause of action for the suit. The alleged cause of action is created and concocted one for the purpose of this suit. 24 O.S.No.5554/1998 3.34 All other facts of the case of the plaintif are categorically denied.
3.35 The suit may be dismissed with exemplary costs.
4. The defendants No.1A(d), 1A(c) and 1A(f) have filed a Memo to the efect that they adopt the written statement of the defendants No.4(a) and 4(c). On behalf of the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) a Memo is filed to the efect that they also adopt the written statement filed by the defendants No.4(a) and D4(c).
5. The pleaded facts of the case of the defendant No.5 may be stated to the following efect: The defendant No.5 has denied the 25 O.S.No.5554/1998 alleged facts constituting cause of action for the suit. She has, in fact, denied existence of any cause of action for the suit. She has also stated that the alleged cause of action is false and imaginary and she has sought for dismissal of the suit. (Note:
during pendency of the suit, the Defendant No.5 died.)
6. The defendant No.6 has filed her independent written statement and admitted the case of the plaintif and further stated that the defendant No.6 is also having a share in the suit property and therefore her share in the suit property may be allotted to her.
7. On behalf of the defendant No.7, a Memo is filed to the efect that the defendant No.7 26 O.S.No.5554/1998 would adopt the written statement of the defendant No.6.
8. Based on the pleadings and materials on record, this Court has framed the following Issues:
ISSUES FRAMED ON 23.07.2005
1. Does plaintif prove that suit property is the joint family property ?
2. Is plaintif entitled to 1/6th share in the suit property?
3. What relief the plaintif is entitled to?
ADDITIONAL ISSUES FRAMED ON 10.12.2019
1. Whether defendants No.1(a), 2(a) and
(c), 3(a), (b), (d), (e) and 4(a) to (d) prove that suit schedule property i.e. 'A' schedule property to their written statement was self acquired property of late Sri Vase Dasanna @ Vasu Dasanna?
2. Whether Defendants No.1(a), 2(a) and
(c), 3(a), (b), (d), (e) and 4(a) to (d) prove that plaintif is not entitled to any share in suit schedule property as he was fostered by his uncle, Sri Vase Anjaneyalu ?
27 O.S.No.5554/1998
3. Whether Defendants No.1(a), 2(a) and
(c), 3(a), (b), (d), (e) and 4(a) to (d) prove that late Sri Vase Dasanna @ Vasu Dasanna had executed Will dated 14.08.1987, registered as document No.78/1987-88 in the office of Sub-Registrar, Rajajinagar, Bengaluru in favour of defendants No.2 to 4?
4. Whether Defendants No.1(a), 2(a) and
(c), 3(a), (b), (d), (e) and 4(a) to (d) further prove that they have acted as per Will executed by late Sri Vase Dasanna @ Vasu Dasanna?
5. Whether Defendants No.1(a), 2(a) and
(c), 3(a), (b), (d), (e) and 4(a) to (d) prove that portion of 'B' schedule property has been agreed to sell to the husband of defendant No.1(a) by defendant No.3, late Sri Rangappa and husband of defendant No.1(a) has constructed a dwelling house in the said portion which is show as item-E to written statement?
6. Whether Defendants No.1(a), 2(a) and (c), 3(a), (b), (d), (e) and 4(a) to
(d) prove that they are in separate possession and enjoyment of suit schedule property as stated in their written statement?
7. Whether Defendants No.6 and 7 prove that they are members of joint Hindu undivided family with plaintif and they are in joint possession and 28 O.S.No.5554/1998 enjoyment of suit schedule property ?
8. Whether defendants Nos.6 and 7 are entitled for their share in suit schedule property?
9. On behalf of the Plaintif, defendants No.6 and 7, plaintif got himself examined as PW.1 and got marked Exs.P.1 to P.15 and got closed the his side. On behalf of the defendants No.4(a) and D4(c), D1A(d), D1A(e) and D1A(f), D-1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d), the defendant No.4(c) has got examined as DW.1 and got marked Exs.D.1 to D.11, Smt. Vimalamma C.M.,(a staf of the office of Sub-Registrar) is examined as DW.2, Sri M.G. Suresh Holla, learned Advocate who drafted the Will is examined as DW.3 and got marked Ex.D.12. 6th defendant - Smt. Lakshmidevamma is examined as DW.4 and got 29 O.S.No.5554/1998 marked Exs.D-13 to D.17(a) and got closed the defendants side.
10. Heard arguments. The learned Advocate for the plaintif and the learned advocates for the Defendants No.6 and 7 have argued to the efect that the suit property is an ancestral property and that the defendants No.4(a) and D4(c), D1A(d), D1A(e) and D1A(f), D-1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) have failed to prove the Will and that the suit property is available for partition and that the Plaintif and the Defendants No.6 and 7 are having 1/7th share each in the suit property and sought for a preliminary decree declaring the shares of the Plaintif and the Defendants No.6 and 7.
11. The learned Advocate for the defendants No.4(a) and D4(c), D1A(d), D1A(e) and 30 O.S.No.5554/1998 D1A(f), D-1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) has submitted that the suit property is the self acquired property of Sri.Vase Dasanna, that defendants No.4(a) and D4(c), D1A(d), D1A(e) and D1A(f), D-1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) have proved the Will, that the Plaintif is fostered son of one Sri.Vase Anjaneyalu, that in view of testamentary succession of the suit property under the Will, the suit property is not available for partition, and that there is no cause of action for the suit. Hence, he has submitted that the suit may be dismissed.
12. The learned Advocate for the plaintif has placed reliance upon the following judgments :
(i) AIR 1959 Supreme Court 443 H. Venkatachala Iyengar vs. B.N. Thimmajamma and others.
31 O.S.No.5554/1998
(ii) AIR 1962 Supreme Court 1471 Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson vs. Mrs. Isolyne Sarojsbashini Bose and others.
(iii) AIR 2009 Supreme Court 1766 Bharpur Singh and Ors. vs. Shamsher Singh.
(iv) AIR 2017 Supreme Court 494 Ramesh Verma (D) Thr. LRs., vs. Lajesh Saxena (D) By L.Rs., and Anr.
(v) AIR 2016 Himachal Pradesh 51 Jagpal Singh and Ors., vs. Veena Devi and Anr.
(vi) AIR 2015 (NOC) 329 (KAR.) Sri Prakash vs. Doddathayamma and others.
(vii) AIR 2007 Supreme Court 1975 Benga Behera and Anr., vs. Braja Kishore Nanda and Ors.
32 O.S.No.5554/1998
(viii) AIR 2000 Supreme Court 3522(1) Kannian and another vs. Sethurama.
(ix) AIR 2006 Bombay 33 Sheshrao M. Kuratkar (D) By L.Rs vs. Keshavrao M. Kuratkar.
(x) AIR OnLine 2020 Chh 1221 Choudhari Budhu Rajwar and Anr. vs. Ramkaran Rangu and Ors.
(xi) AIR 2007 Supreme Court 1721 Smt. J. Yashoda vs. Smt. K. Shobha Rani.
(xii) AIR 2022 Supreme Court 167 Murthy and others vs. C. Saradambal and others.
13. The learned Advocate for the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) has relied upon the following judgments :
(I) (2005) 1 Supreme Court Cases 280 Meenakshiammal (Dead) Through LRs., and Others vs. Chandrasekaran and another.33 O.S.No.5554/1998
(ii) AIR 2020 Supreme Court 2666 Dhanpat vs. Sheo Ram (Deceased) through Lrs., and Ors.
(iii) AIR 2021 Supreme Court 4830 V. Prabhakara vs. Basavaraj K. (Dead) By Lr. And Anr.
(iv) (2009) 5 Supreme Court Cases 713 Vimalchand Ghevarchand Jain and others vs. Ramakant Eknath Jadoo.
(v) (2009) 12 Supreme Court Cases 101 Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale and others.
(vi) LAWS(KAR)-2019-10-212 K.S. Natraj vs. K.S. Natraj.
12.
14. My findings on the above Issues are as follows .-
Issue No.1 : In the Affirmative Issue No.2 : The plaintif is entitled to 1/7th share in the suit property.
Addl. Issue No.1 : In the Affirmative 34 O.S.No.5554/1998 Addl. Issue No.2 : In the Negative Addl. Issue No.3 : In the Negative Addl. Issue No.4 : In the Negative Addl. Issue No.5 : In the Negative Addl. Issue No.6 : In the Negative Addl. Issue No.7 : In the Affirmative Addl. Issue No.8 : In the Affirmative Issue No.3 : As per final order, for the following :
REASONS
15. Additional Issue No.1 : This Court has framed the additional issue No.1 throwing burden on the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(a), D4(b), D4(c) and D4(d) to prove that the suit property was the self-acquired property of late Sri Vase Dasanna @ Vasu Dasanna. None of the parties have disputed the fact to the efect that late Sri Vase Dasanna had purchased 35 O.S.No.5554/1998 the suit property under a registered sale deed dated 31-03-1960 from one Sri Sundar Raj Naidu S/o late Sri Govindaraj Naidu. A Certified copy of the said sale deed is produced and marked at Ex.P-1. The only controversy between the plaintif and the defendants No.5 to 7 on the one hand and the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(a), D4(b), D4(c) and D4(d) on the other hand is as to whether late Sri Vase Dasanna purchased the suit property from his own self- earnings or whether he purchased the suit property from the sale proceeds of the property at Yedaki Village of Ananthapur District in Andhra Pradesh State and also as to whether said property at Yedaki Village is ancestral property.
16. The defendant No.6 got herself examined as DW.4 in her capacity as defendant 36 O.S.No.5554/1998 No.6 (party to the suit) and also in her capacity as GPA holder of the defendant No.7. The DW.4 has stated (in fact, reiterated the pleaded facts of her case) to the following efect:
16.1 One late Sri Vase Kondappa was having an ancestral property at Yedaki Village, Tadapatri Taluk, Ananthapura District, Andhra Pradesh State.
He had purchased the said property under the registered sale deed dated 19-12-1929. Late Vase Kondappa died leaving behind him late Sri Vase Dasanna and late Sri Vase Anjaneyalu. Late Sri Vase Dasanna sold the said property at Yedaki Village in favour of one Sri Gaddam Anjanappa under the registered sale deed dated 14-05-1959 for a sale consideration amount of Rs.800/-. From out of the said sale proceeds, late Sri Vase Dasanna had purchased the suit property under Ex.P-1 sale 37 O.S.No.5554/1998 deed dated 31-03-1960 for valuable sale consideration amount of Rs.900/-. Hence, the suit property is an ancestral property of the plaintif and the defendants.
16.2 The defendant No.6 has produced a certified copy of the registered sale deed dated 19-12-1929 and got it marked as Ex.D-14. The Ex.D-14 is in Telugu language. A translated version of Ex.D-14 into English is filed by the defendant No.6 and the same is marked as Ex.D-14(a). It would be useful to pause for a while and to read the contents of Ex.D-14(a). It is executed by one Sri Chinnagudu Saabu S/o Mushkin Saabu, resident of said Yedaki Village in favour of one Sri Kondappa S/o Sri Vase Dasanna (grand father of defendant No.6). It is in respect of a house property bearing No.338, situated at said Yedaki Village.
38 O.S.No.5554/199816.3 The defendant No.6 has produced a certified copy of a registered sale deed dated 14-05-1959 and got the same marked as Ex.D-16. Ex.D-16 is in Telugu language. Translation of Ex.D- 16 into English is produced by the defendant No.6 and marked as Ex.D-16(a). On perusal of recitals in Ex.D-16 would show that late Sri Vase Dasanna (father of defendant No.6) had sold the said house property bearing No.52 in favour of one Sri Anjanappa S/o Sri Gaddam Chinnappa for sale consideration amount of Rs.800/-. 16.4 As noted earlier, the suit property is purchased by late Sri Vase Dasanna under Ex.P-1 sale deed dated 31-03-1960.
39 O.S.No.5554/1998
17. Bearing in mind the above noted datas furnished by the defendant No.6, let me examine the oral evidence of DW.4 during her cross- examination. During the course of cross- examination, the DW.4 (the defendant No.6) has stated to the following efect. At this stage of discussion, the statements of the DW.4 touching Ex.D-14 to Ex.D-17 are recorded. Late Sri Vase Dasanna had handed over Ex.D-14 sale deed to the DW.4. The DW.4 has got secured the documents marked at Ex.D-14 to Ex.D-17 from the plaintif. The DW.4 cannot say as to when the plaintif had filed copy application to secure the documents marked at Ex.D-14 to Ex.D-17. The DW.4 had asked the plaintif to secure the said documents marked at Ex.D-14 to Ex.D-17, much prior to filing of the written statement by the defendant No.6(DW.4). The DW.1 cannot say as to when the plaintif had 40 O.S.No.5554/1998 given the said documents marked at Ex.D-14 to Ex.D-17 to the hand of the DW.4. The DW.4 cannot say the year in which the plaintif produced the said documents at Ex.D-14 to Ex.D-17 before the DW.4. It is not true to suggest that at the time of production of the said documents marked at Ex.D- 14 to Ex.D-17 before the Court, the plaintif had handed over the said documents to the DW.4. The DW.4 does not remember as to when the plaintif has filed the present suit. It is not true to suggest that it is at the instance of the plaintif, the DW.4 (the defendant No.6) has filed her written statement, filed her examination-in-chief by way of her affidavit and orally stated before this Court in this suit. It is not true to suggest that late Sri Vase Dasanna did not purchase the suit property from the sale proceeds of the said ancestral property at Yedaki village. It is not true to suggest that late Sri 41 O.S.No.5554/1998 Vase Dasanna had purchased the suit property from his self-earnings.
18. Turning to the deposition of PW.1 (the plaintif), his deposition in his cross-examination regarding said controversy as to whether suit property was purchased from the self-earnings of late Sri Vase Dasanna or from the sale proceeds of the said property at Yedaki Village may be stated to the following efect :
18.1 It may be noted that the PW.1 is supporting the case of the defendants No.6 and 7.
Bearing this aspect of the matter in mind, the evidence of PW.1 regarding Ex.D-14 to Ex.D-17 along with Ex.P-1 may have to be considered. The PW.1 has denied the suggestion to the efect that his grand father late Sri Kondappa did not have the 42 O.S.No.5554/1998 said property at Yedaki village and that late Sri Vase Dasanna (father of the PW.1) did not sell the said property at Yedaki Village.
19. The defendant No.4(c) Sri D.K. Pavankumar got himself examined as DW.1. It appears that after filing of the written statement by the defendant No.6 state upto the two sale deeds of 1929 and 1959, the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(a), D4(b), D4(c) and D4(d) appears to have not filed additional written statement or not got amended their written statement so as to speak about the pleadings in the written statement of the defendant No.6 regarding said two sale deeds. The same is carried forward in the examination-in-chief of DW.1. With this understanding of the pleadings of the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), 43 O.S.No.5554/1998 D3(d), D3(e), D4(a), D4(b), D4(c) and D4(d) and the examination-in-chief of DW.1 (in the line of the said written statement), let me examine the deposition of DW.1 during the course of cross-examination. 19.1 The DW.1 has stated that late Sri Vase Dasanna did not have any property at Yadaki Village. Late Sri Vase Dasanna was a Weaver by avocation. During his days, he was earning Rs.3/- per day (i.e., in late 1950's). Late Sri Vase Dasanna was not an income tax assessee. It is not true to suggest that the income that late Sri Vase Dasanna was earning was not sufficient to meet both the ends of the needs of his family (constituting of himself, his wife and his children). It is not true to suggest that the children of late Sri Vase Dasanna were jobless. The DW.1 has volunteered to state that he was working along with his father in 44 O.S.No.5554/1998 weaving clothes. It is not possible to produce any document to show that the children of late Sri Vase Dasanna were having source of income. It is not true to suggest that late Sri Vase Dasanna was unemployed when he came to Bangalore. It is not true to suggest that for the sake of this case, the DW.1 is deposing falsely to the efect that late Sri Vase Dasanna had sufficient income to purchase the suit property under Ex.P-1 sale deed. It is not true to suggest that from the sale proceeds of the sale of the said property at Yedaki Village, late Sri Vase Dasanna had purchased the suit property. It is not true to suggest that late Sri Vase Dasanna did not purchase the suit property from his self- earnings. It is not true to suggest that the suit property was not the self-acquired property of late Sri Vase Dasanna. It is not true to suggest that all 45 O.S.No.5554/1998 the legal heirs of late Sri Vase Dasanna have a right to share in the suit property.
19.2 It is not true to suggest that the plaintif is not the fostered son of late Sri Vase Anjaneyalu. The DW.1 has voluntarily stated that since late Sri Vase Anjaneyalu did not have any children, he had fostered the plaintif. The DW.1 has produced document to show that the plaintif is the fostered son of late Sri Vase Anjaneyalu. It is not true to suggest that since the plaintif was not the fostered son of late Sri Vase Dasanna, the DW.1 is not able to produce any document regarding the said fact. It is not true to suggest that the name appearing in column No.5 in Ex.D-4 Encumbrance certificate (which pertains to Ex.D-2) is not the name of the plaintif.
46 O.S.No.5554/199819.3 It is not true to suggest that to deprive the plaintif his legitimate share in the suit property, the DW.1 and others have got divided the suit property into four portions as per their whims and fancy.
19.4 It is not true to suggest that the house existing in the suit property was built by late Sri Vase Dasanna.
19.5 It is not true to suggest that late Sri Vase Dasanna and his brothers had not got divided the joint family properties. The said Partition Deed was registered. The said Partition Deed is produced in this case. The plaintif and the defendant Nos.6 and 7 were not parties to the said Partition Deed and they have not put their signatures in the said Partition Deed. It is true that under the said 47 O.S.No.5554/1998 Partition Deed no property was given to the shares of the plaintif and the defendants No.6 and 7. The DW.1 has voluntarily stated that since the plaintif and the defendants No.6 and 7 were not residing along with late Sri Vase Dasanna and hence, no share is given to them in the said partition. 19.6 It is true that the name of the father of late Sri Vase Dasanna is Sri Vase Kondappa. It is not true to suggest that said Sri Vase Kondappa had purchased the said property at Yedaki Village under a registered sale deed dated 19-12-1929 as per Ex.D-14. It is not true to suggest that on the death of late Sri Vase Kondappa, the said property at Yedaki Village is inherited by late Sri Vase Dasanna. It is not true to suggest that late Sri Vase Dasanna had sold the said property at Yedaki Village under a registered sale deed dated 14-05-1959 as per 48 O.S.No.5554/1998 Ex.D-16 in favour of one Sri Gaddam Anjanappa. The DW.1 has stated that since the said property at Yedaki Village was not at all in existence, question of selling said property by late Sri Vase Dasanna under Ex.D-16 would not arise at all. The DW.1 has not learnt about the oral testimony of DW.4 (the defendant No.6) and also about the documents produced by her.
19.7 Late Sri Vase Dasanna had purchased the suit property in the year 1960. It is not true to suggest that from the sale proceeds after selling the said house property at Yedaki Village, late Sri Vase Dasanna had purchased the suit property. It is not true to suggest that in view of the above suggested facts, the suit property was ancestral property in the hands of late Sri Vase Dasanna. It is not true to suggest that even though the suit 49 O.S.No.5554/1998 property was ancestral property of late Sri Vase Dasanna, the DW.1 is deposing falsely to the efect that the suit property was the self-acquired property of late Sri Vase Dasanna and his children. 19.8 It is not true to suggest that the defendants No.1 to 4 have not filed their written statement.
19.9 The above are the statements made by the DW.1 touching additional issue No.1.
20. The plaintif and the defendants No.6 and 7 have produced a certified copy of the registered sale deeds of 1929 and 1959 and copies of the concerned Encumbrance certificates and got them marked at Ex.D-14 to Ex.D-17 and the translations thereof at Ex.D-14(a) to Ex.D-17(a). All 50 O.S.No.5554/1998 these documentary evidence indicate that late Sri Vase Kondappa (father of late Sri Vase Dasanna) had purchased the said property at Yedaki Village in 1929 and that late Sri Vase Dasanna had sold the said property in 1959 (just before the purchase of the suit property). Let that be as it may, having taken into consideration the fact that the plaintif and the defendants No.6 and 7 have been able to establish the existence of the said house property at Yedaki Village, let me consider whether on the death of late Sri Vase Kondappa, whether the said property at Yedaki Village became the ancestral property in the hands of late Sri Vase Dasanna.
21. In a judgment reported in (1986) 3 SCC 567 Commissioner of Wealth Tax, Khanpur and Others vs. Chander Sen and others, the Hon'ble Supreme 51 O.S.No.5554/1998 Court has explained the concept of ancestral property.
"15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the comparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint family of his son and grandson and other members who form joint Hindu family with him. But the question is; is the position afected by section 8 of the Succession Act, 1956 and if so, how? The basic argument is that section 8 indicates the heirs in respect of certain property and class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.52 O.S.No.5554/1998
26. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore."
22. In view of the well settled proposition of law, it has to be remembered that in the present case the said house property at Yedaki Village was self- acquired property of late Sri Vase Kondappa. The reason is that there is no pleading in the plaint or in the written statement of defendants No.6 and 7 that late Sri Vase Kondappa had income from any ancestral property and that he used the said income to purchase the said house property at Yedaki Village. On his death, late Sri Vase Dasanna must have acquired the said property at Yedaki Village under Sec.8 (but, not under Sec.6) of the Hindu Succession Act 1956. Such being the position, late Sri Vase Dasanna acquired the said 53 O.S.No.5554/1998 property at Yedaki Village absolutely, not as an ancestral property. In other words, the said property at Yedaki Village was not the ancestral property in the hands of late Sri Vase Dasanna, but, it was his absolute property. Hence, during the life time of late Sri Vase Dasanna none of his children and even his wife for that matter had any legal right to claim any share in the said property. Even if late Sri Vase Dasanna had used the said sale proceeds from sale of said property at Yedaki Village, even then also it cannot be said that the suit property was ancestral property in the hands of late Sri Vase Dasanna. In that view of the matter, whether late Sri Vase Dasanna had purchased the suit property from his own self-earnings or by using the sale proceeds of the sale of the said property at Yedaki Village, it would not matter much. In either way the acquisition of the suit property by late Sri Vase 54 O.S.No.5554/1998 Dasanna under Ex.P-1 sale deed would be his self- acquisition and but, not acquisition as ancestral property. In view of these conclusions, additional issue No.1 is held in the affirmative.
23. Additional Issue No.3 to 6: It is the specific case of the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(a), D4(b), D4(c) and D4(d) is that on 14-08-1987 late Sri Vase Dasanna had executed a registered Will bequeathing the suit property in the manner narrated in the written statement at para 10; and also for the reasons stated in the said paragraphs itself.
24. The defendant No.4(c) Sri D.K. Pavankumar has entered into witness box and on oath submitted his examination-in-chief by way of 55 O.S.No.5554/1998 his affidavit. Therein, the DW.1 has deposed in the line of the defence pleas raised in the written statement of the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(a), D4(b), D4(c) and D4(d) concerning the said Will. During the course of cross-examination, the DW.1 has stated to the following efect regarding the said Will :
24.1 Late Sri Vase Dasanna had five sons and two daughters namely, Sri Doddarangappa, Sri Chikkarangappa, Sri Balarangappa, Sri Adinarayana, Sri Kondappa, Smt. Lakshmidevamma and Smt. Padmavathi.
24.2 Late Sri Vase Dasanna was originally from Ananthapura District of Andhra Pradesh State.
He came down to Bangalore prior to 1950. 56 O.S.No.5554/1998 24.3 It is true that since late Sri Vase Dasanna found it difficult to maintain his wife and children being at Yedaki Village, he came to Bangalore in search of livelihood. 24.4 To a suggestion to the efect that late Sri Vase Dasanna and his wife (namely, the present defendant No.5) had equal love and afection towards all their children, the reply of the DW.1 is that they had love and afection towards those who took care of them during their difficult time. 24.5 The DW.1 cannot say as to what was the age of late Sri Vase Dasanna at the time of his death. It is not true to suggest that at the time of his death he was aged about 90 years. It is not true to suggest that late Sri Vase Dasanna was dependent on others during his last days. It is not 57 O.S.No.5554/1998 true to suggest that in 1975 itself late Sri Vase Dasanna had stopped his avocation as Weaver due to eye sight problem. It is not true to suggest that he was finding it difficult to see properly and hence, he was wearing spectacles. It is not true to suggest that he had undergone surgery to his eye. It is not true to suggest that he had no control over his gnanendriya and panchendriya.
24.6 As on the date of filing of this suit, the wife of late Sri Vase Dasanna was very much alive. Late Sri Vase Dasanna had love and afection towards his wife till his last breath. 24.7 It is not true to suggest that late Sri Vase Dasanna had more love and afection towards his daughters than his sons.
58 O.S.No.5554/199824.8 It is not true to suggest that since nothing is given to the daughters and wife of late Sri Vase Dasanna under the said Will, the said Will was not executed by late Sri Vase Dasanna and that the defendants No.1 to 4 have got created the said Will.
24.9 To a question to the efect that the persons who have signed in the said Will as witnesses are not in existence, the reply of the DW.1 is that they are very much in existence. 24.10 It is not true to suggest that late Sri Vase Dasanna had no absolute right to execute the said Will.
24.11 It is not true to suggest that the plaintif is having equal share in the suit property. 59 O.S.No.5554/1998 24.12 One Sri Mallikarjuna and one Sri Rangappa and one Sri Kondappa have put their signatures in the said Will. Said Sri Kondappa is none other than the father of the DW.1. Said Sri Rangappa is the paternal uncle of DW.1 and said Sri Mallikarjuna is a friend of late Sri Vase Dasanna. Said Sri Rangappa and Kondappa arrayed as defendants No.1 and 4. The DW.1 does not know whether or not said Sri Mallikarjuna is alive. The DW.1 does not know the address of said Sri Mallikarjuna.
24.13 It is not true to suggest that in the year 1987, late Sri Vase Dasanna was not able to move about by rising from his bed without the support of others.
60 O.S.No.5554/199824.14 The DW.1 does not know if late Sri Vase Dasanna was an illiterate person and he did not know reading and writing. The DW.1 has voluntarily stated that late Sri Vase Dasanna was able to read in Kannada.
25. During the course of cross-examination on behalf of the defendants No.6 and 7, the DW.1 has stated to the following efect regarding the said Will.
25.1 Ex.D-12 is a certified copy of the said Will. The DW.1 came to know about the said Will on the date of the execution of the said Will itself. The DW.1 does not know where is the original Will. It is not true to suggest that the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(a), 61 O.S.No.5554/1998 D4(b), D4(c) and D4(d) have not stated anything about the original Will in their written statement. 25.2 It is not true to suggest that there was no division of properties between the father of the DW- 1 and his brothers. The DW-1 has produced a registered partition deed in this case. The Plaintif and the Defendants No.6 and 7 have not put their signatures in the partition deed. It is true that no property was alloted to the shares of the Plaintif and Defendants No.6 and 7 under the registered partition deed. The DW-1 has voluntarily stated that since the Plaintif and the Defendants No.6 and 7 were not residing along with Sri.Vasedasanna, no share was given to the Plaintif and Defendants No.6 and 7 under the registered partition deed. 62 O.S.No.5554/1998 25.3 In the written statement, the DW-1 has not stated as to where is the original Will. The DW-1 and his paternal elder uncles have gone to their advocate to instruct regarding the matters to be contained in their written statement. 25.4 To a question as to what is the date on which the Will was prepared and executed, the answer is that the DW-1 does not remember, but, it must be somewhere in 1987 or 1988.
25.5 The date of birth of the DW-1 is 16.10.1982. To a suggestion to the efect that as on the alleged date of alleged execution of the Will, late Sri.Vasedasanna was aged about 90 years, the reply is that late Sri.Vasedasanna was aged about 75 years but not 90 years.
63 O.S.No.5554/199825.6 It is not true to suggest that as on the date of alleged execution of the Will, the eye sight of Sri.Vasedasanna was impaired and that he was not having sound disposing state of mind. 25.7 It is not true to suggest that Sri.Vase Dasanna did not execute the Will. It is not true to suggest that the Defendants No.1 to 4 have got created the Will.
25.8 One Sir.Kondappa and one Sri.Mallikarjuna are the witness to the Will. The said two witnesses were friends of Sri.Vase Dasanna. The DW-1 does not know the addresses of the said two witnesses. The DW-1 had enquired with neighbours and the persons known to the DW-1 regarding the whereabouts of the said two witnesses. 64 O.S.No.5554/1998 25.9 It is not true to suggest that the Lrs of the Defendants No.1 to 4 have not produced the original Will intentionally as the production of the same would reveal to the Court that Sri.Vase Dasanna had not executed the said Will. It is not true to suggest that Sri.Vase Dasanna has not put his signatures in the Will.
25.10 It is not true to suggest that since the suit property was an ancestral property in the hands of Sri.Vase Dasanna, Sri.Vase Dasanna was not having absolute right to bequeath the suit property under the Will. The DW-1 has voluntarily stated that the suit property was the self acquired property of Sri.Vase Dasanna.
65 O.S.No.5554/199825.11 It is not true to suggest that in order to deprive the rights of the Plaintif and defendants No.6 and 7 to claim shares in the suit property, the Lrs of the Defendants No.1 to 4 have produced Ex.D.12 - certified copy of the Will. 25.12 The Defendant No.5 Smt.Mangamma (the wife of Sri.Vase Dasanna) knew about the Will. As per the common consensus between the Defendant No.5 and her husband, the Will came to be executed. It is not true to suggest that the Defendant No.5 has filed her written statement in this suit. It is not true to suggest that in her written statement, the Defendant No.5 has not mentioned anything about the Will. It is not true to suggest that since Sri.Vase Dasanna did not execute the Will, the Defendant No.5 has not mentioned anything about Will in her written statement. 66 O.S.No.5554/1998
26. One Smt. Vimalamma C M, a staf (SDA) in the office of the Senior Sub-Registrar, Rajajinagar, Bengaluru, is examined as DW-2. In fact, on the request of the Lrs of the Defendants No.1 to 4, a direction was issued to the said Sub- Registrar to produce a certified copy of the Will. Accordingly, the DW-2 has been deputed by the Sub-Registrar to produce a certified copy of the Will which is marked at Ex.D.12. DW-2 is cross examined on behalf of the Plaintif. During course of cross examination, the DW-2 has stated to the following efect : It is not true to suggest that the handwriting found in Ex.D.12 is that of the learned advocate but not that of the Sub-Registrar. It is not true to suggest that without verifying the contents noted in the register by the case worker, the Sub-Registrar would put his signature in the concerned register. It 67 O.S.No.5554/1998 is not true to suggest that the signature found in Ex.D.12 is not the signature of the Sub-Registrar. In Ex.D.12 - certified copy of the Will the names of the witnesses are noted as they have put their signatures therein. The signature of Sri.Vase Dasanna is not taken in Ex.D.12. It is not true to suggest that on 14-08-1987, Sri.Vase Dasanna did not appear before the office of Sub-Registrar and did not put his signatures in the Will. Sri.Vase Dasanna might have visited the office of the Sub- Registrar to collect the documents from the said office. The DW-2 does not know the details of the documents which Sri.Vase Dasanna had collected from the office of the Sub-Registrar. It is not true to suggest that Sri.Vase Dasanna never appeared before the office of the Sub-Registrar to collect any documents. Ex.D.12 does not contain signature of the witnesses. Ex.D.12 is prepared based on the 68 O.S.No.5554/1998 original Will. It is true that Ex.D.12(a) is a typed copy of Ex.D.12. On presentation of a Will for registration, in the normal course it would be asked as to who is executing it and in whose favour it is being executed. It is not true to suggest that Sri.Vase Dasanna did not get any Will registered in the office of the Sub-Registrar. In Ex.D.12 Will photo of the testator and the photos of the witnesses are not seen. It is not true to suggest that Sri.Vase Dasanna was not knowing the contents of the Will. The DW-2 does not know if or not the Sub-Registrar who registered the Ex.D.12 Will is still alive. It is not true to suggest that without enquiring anything about the contents of the document, the then Sub- Registrar had put his signature in the Will.
27. One Sri.M G Suresh Holla, an Advocate, is examined as DW-3. He has entered into witness box 69 O.S.No.5554/1998 and on oath, submitted his examination in chief by way of his affidavit. Therein, the DW-3 has stated to the following efect :
27.1 Sri Vase Dasanna was a client of the DW.3. During first week of August 1987, Sri Vase Dasanna approached the DW.3 in his chambers and consulted him regarding execution of a Will in respect of suit property. The Sri Vase Dasanna instructed the DW.3 to prepare a Will. As per the instructions of Sri Vase Dasanna, the DW.3 prepared a Will. After preparation of the Will Sri Vase Dasanna had fixed a date for registration of the Will on 14-08-1987. The Sri Vase Dasanna had informed the DW.3 that he would bring witnesses on 14-08-
1987. The DW.3 had read over and explained the contents of the Will to Sri Vase Dasanna whereupon the latter accepted the said contents. On 14-08- 70 O.S.No.5554/1998 1987 Sri Vase Dasanna again visited the chambers of the DW.3 along with three witnesses viz., Sri C. Mallikarjuna, Sri Kondappa and Sri Rangappa. Again the DW.3 read over the contents of the Will to Sri Vase Dasanna in the presence of the witnesses. Sri Vase Dasanna affixed his left thumb impression on the Will in the presence of the witnesses and thereafter, the witnesses have subscribed their signatures in the Will. The DW.3 has also signed in the Will as a scribe. Thereafter, the DW.3, Sri Vase Dasanna and the witnesses went to the office of the Sub-Registrar and presented the Will for registration. The DW.3 had identified Sri Vase Dasanna before the Sub-Registrar. After registration Sri Vase Dasanna took the Will along with him.
71 O.S.No.5554/199827.2 The DW.3 is cross-examined on behalf of the plaintif and on behalf of the defendants No.6 and 7. During the course of cross-examination, the DW.3 has stated to the following efect: It is not true to suggest that Sri Vase Dasanna was not known to DW.3. It is not true to suggest that Sri Vase Dasanna was not a client of DW.3. It is not true to suggest that for this case the DW.3 is deposing falsely to the efect that Sri Vase Dasanna was a client of DW.3. Sri Vase Dasanna was not a litigant before any Court. It is not true to suggest that the DW.3 had not even seen the face of Sri Vase Dasanna. The DW.3 cannot state based on the memory as to what was the date of which Sri Vase Dasanna came to the DW.3. It is not true to suggest that since Sri Vase Dasanna never visited the DW.3, the DW.3 is not able to tell the date of visit of Sri Vase Dasanna to the DW.3. The DW.3 72 O.S.No.5554/1998 does not know if the distance between the office of the senior of DW.3 and the suit property is 3 kms. To a question as to whether the signature of the DW.3 can be seen in Ex.D-12 - certified copy of the Will, the reply is that it is a copy issued from the office of the Sub-Registrar.
27.3 To a question as to whether the signatures of Sri Vase Dasanna or the signatures of the witnesses are seen in Ex.D-12, the reply of the DW.3 is that Ex.D-12 is a certified copy issued from the office of the Sub-Registrar. To a question as to whether age of Sri Vase Dasanna is mentioned in the Ex.D-12, the reply is that if it is mentioned, it would be there and if it is not mentioned, it would not be there. It is not true to suggest that since Sri Vase Dasanna was aged about 90 years and as he was not in a position to move outside his house, he 73 O.S.No.5554/1998 never visited the DW.3 in the year 1987. It is not true to suggest that in the year 1987 due to age factor, Sri Vase Dasanna was not having sound disposing state of mind and he was not having physical health to take independent decision on his own. To a suggestion to the efect that handwriting in Ex.D-12 is that of the DW.3, the reply is that Ex.D-12 is a certified copy issued from the office of the Sub-Registrar. The DW.3 does not know as to why Sri Vase Dasanna did not get the Will registered on the very same day when Sri Vase Dasanna visited the DW.3 for the first time. It is not true to suggest that it is the children who instructed the DW.3 to prepare the Will. It is not true to suggest that since Sri Vase Dasanna did not visit the DW.3 on the date on which the Will was prepared, it was not possible for them to go to the office of Sub-Registrar for getting the Will registered 74 O.S.No.5554/1998 on the very same day. The DW.3 does not know if Sri Vase Dasanna is not a native of Bengaluru. Sri Vase Dasanna had visited the chambers of DW.3, as volunteered by the DW.3. It is not true to suggest that the children of Sri Vase Dasanna had instructed the DW.3 that they are originally from Andhra Pradesh and they were not conversant with Kannada. The DW.3 has voluntarily stated that DW.3 had not seen the children of Sri Vase Dasanna. It is not true to suggest that the statement in the Will to the efect that Sri Vase Dasanna did not know Kannada language and as such the DW.3 had explained the contents of the Will to Sri Vase Dasanna and that Sri Vase Dasanna had understood the contents of the Will is false. During the first week of 1987, Sri Vase Dasanna and one Sri Mallikarjuna had visited the DW.3. 75 O.S.No.5554/1998 27.4 To a suggestion to the efect that DW.3 has not mentioned in the Will as to the times and places where Sri Vase Dasanna and the witnesses have subscribed their signatures in the Will, the reply is that it was not necessary for DW.3 to mention about the said facts in the Will. To the knowledge of DW.3, there is no need to administer oath to Sri Vase Dasanna at the time of execution of the Will. The DW.3 has voluntarily stated that in the Will it is stated to the efect that Sri Vase Dasanna has stated that Sri Vase Dasanna had get red the contents of the Will and understood the same and thereafter subscribed his signature in the Will. It is not true to suggest that on 14-08-1987 Sri Vase Dasanna has not executed any Will, and has not subscribed his left thumb mark on the Will. The witnesses to the Will have put their signatures on the Will in the office of the Sub-Registrar. The DW.3 76 O.S.No.5554/1998 does not know if the Sub-Registrar has not endorsed on the Will to the efect that Sri Vase Dasanna and the attesting witnesses had put their signatures on the Will in the presence of the Sub- Registrar. It is not true to suggest that one Sri Kondappa and one Sri Rangappa, being the children of Sri Vase Dasanna had given false instruction to the DW.3 and got prepared the Will with an intention to knock of the suit property to themselves. It is not true to suggest that after the registration of the Will Sri Vase Dasanna never appeared before the Sub-Registrar to receive the Will and as such, the DW.3 handed over the said Will to the hands of the children of Sri Vase Dasanna. The DW.3 has voluntarily stated that the registered original Will was handed over to Sri Vase Dasanna in the office of the Sub-Registrar. 77 O.S.No.5554/1998 27.5 To a suggestion to the efect that there is no endorsement on Ex.D-12 to the efect that Sri Vase Dasanna had presented the Will before the Sub-Registrar for registration, the reply of the DW.3 is that in Ex.D-12 there is an endorsement regarding who had presented the Will for its registration. It is not true to suggest that without the consent and without the presence of Sri Vase Dasanna the Will was created. It is not true to suggest that the DW.3 had not seen said Sri Mallikarjuna. To a suggestion to the efect that on 14-08-1987 neither Sri Kondappa, nor Sri Rangappa, nor Sri Mallikarjuna nor Sri Vase Dasanna had visited the chambers of DW.3, the reply of the DW.3 is that Sri Kondappa and Sri Rangappa had visited the office of the Sub-Registrar. Sri Vase Dasanna and Sri Mallikarjuna had visited the DW.3 as well as the office of the Sub-Registrar. The witness Sri 78 O.S.No.5554/1998 Rangappa and a son of Sri Vase Dasanna by name Rangappa are not one and the same person, but, they are distinct and separate persons. It is not true to suggest that Sri Vase Dasanna was a Telugu speaking person and he did not know Kannada. It is not true to suggest that the DW.3 has not explained the contents of the Will to Sri Vase Dasanna and as such the question of Sri Vase Dasanna understanding the contents of the Will would not arise at all. It is not true to suggest that the DW.3 is deposing falsely to the efect that Sri Vase Dasanna had received original registered Will from the office of the Sub-Registrar. 27.6 The DW.3 has got enrolled as an Advocate in the year 1986. At the relevant point of time the DW.3 was working in the chambers of his senior and that he was handling the cases 79 O.S.No.5554/1998 independently. The DW.3 does not remember regarding preparation of any notes to draft the Will. The DW.3 has not prepared any sketch at the time of preparation of Will. But, however, the boundaries of the property is mentioned in the Will. It is not true to suggest that since Sri Vase Dasanna did not visit the chambers of the DW.3, the DW.3 did not prepare any notes or any sketch. The DW.3 does not know as to where is the copy of sale deed produced by Sri Vase Dasanna before the DW.3 at the time of preparation of the Will. The reason for the same is that more than 35 years have elapsed by the time the DW.3 is deposing before this Court. The DW.3 is not having any copy of the Will in his office. It is not true to suggest that since Sri Vase Dasanna has not executed any Will, the DW.3 is not having a copy of the Will. The DW.3 had not received any family tree of Sri Vase Dasanna. The 80 O.S.No.5554/1998 DW.3 had prepared the Will as per the instructions given by Sri Vase Dasanna. The DW.3 did not enquire as to how many children Sri Vase Dasanna had. It is not true to suggest that Sri Kondappa and Sri Rangappa (children of Sri Vase Dasanna) had instructed the DW.3 to prepare the Will, the DW.3 did not ask about the number of children that Sri Vase Dasanna had. The Will is prepared on a stamp paper. The DW.3 had purchased the stamp paper in the name of Sri Vase Dasanna. The DW.3 does not remember as to who is the Stamp vendor, from whom the DW.3 purchased the said stamp paper. The DW.3 cannot say the value of the stamp paper based on the memory of the DW.3. It is not true to suggest that since Sri Vase Dasanna has not executed the Will, the DW.3 does not remember the above noted aspects. It is not true to suggest that said Sri Rangappa and Sri Kondappa are the clients 81 O.S.No.5554/1998 of the DW.3. It is not true to suggest that Sri Vase Dasanna never visited the DW.3 to instruct the DW.3 to prepare the Will.
28. The defendant No.6 is examined as DW.4. The DW.4 has entered into witness box and submitted her examination-in-chief by way of affidavit wherein she has narrated the pleaded facts of her case which are noted supra. During the course of cross-examination on behalf of the defendants No.1 to 4, the DW.4 has stated to the following efect :
28.1 The defendant No.7 is residing at Hyderabad. To perform the death ceremony of the husband of the defendant No.7, the defendant No.7 had come over to Bengaluru and at that time the defendant No.7 had handed over the SPA which is 82 O.S.No.5554/1998 marked at Ex.D-13, to the DW.4. The DW.4 has collected Ex.P-14 to Ex.P-17 from the plaintif. Sri Vase Dasanna died in 1988. During the time of his death, he, his younger brother Sri Vase Anjaneyulu and the brothers of DW.4 were residing together.
The DW.4 is having document to show that Sri Vase Anjaneyulu was residing in the suit property. The DW.4 cannot say as to the nature of the document which she has referred to. Sri Vase Anjaneyulu was not having any property other than the suit property. The marriage of the DW.4 took place in 1964. Since then, the DW.4 is residing in her marital house at Mysuru. The DW.4 had constructed a room in a site given by the testator. The said site is situated at Rajajinagar. There is no document regarding the said site.
83 O.S.No.5554/199828.2 The defendant No.7 got married somewhere in 1980 or 1981. Since then she is residing in her marital house.
28.3 The DW.4 does not know if Sri Vase Anjaneyulu was having a site nearby the suit property. It is not true to suggest that Sri Vase Anjaneyulu was residing in the said house situated nearby the suit property and that the plaintif was also residing with him in the said house. The DW.4 has not learnt about the defence pleas taken by the other defendants.
28.4 Sri Vase Dasanna had five sons and two daughters. They are : (i) First son Sri Doddarangappa. He was residing as Rajajinagar 6 th Block. (ii) Second son Sri Chikkarangappa. (iii) Third son Sri Balarangappa. (iv) Fourth son Sri 84 O.S.No.5554/1998 Adinarayana. And (v) The last son Sri Kondappa. The DW.4 is the first daughter of Sri Vase Dasanna. The defendant No.7 is the last daughter of Sri Vase Dasanna. It is not true to suggest that at the time of death of Sri Vase Dasanna Sri Chikkarangappa, Sri Balarangappa and Sri Kondappa alone were residing with Sri Vase Dasanna.
28.5 It is not true to suggest that the DW.4 knew about the Will. Sri Vase Dasanna has not executed the Will. After registration of this suit, the DW.4 has not made eforts to know about the Will. 28.6 At the time of death of Sri Vase Dasanna a constructed house was in existence in the suit property. Sri Vase Dasanna himself had constructed the said house. The said house had small four portions. The DW.4 herself has 85 O.S.No.5554/1998 instructed her Advocate to mention in her affidavit in lieu of her examination-in-chief that Sri Vase Dasanna has not at all executed the Will. The DW.1 has not seen the Will at all. The DW.4 has not stated anything about the Will in her written statement.
28.7 The DW.4 has no document to show that during his last days Sri Vase Dasanna was sufering from illness and he was bedridden. Sri Vase Dasanna was not consuming any medicine and he never used to go outside his house. The DW.4 has not stated about the said facts in the written statement. It is not true to suggest that at the instigation of the plaintif, the DW.4 has taken false defence and deposing falsehood. 86 O.S.No.5554/1998 28.8 In the examination-in-chief by way of affidavit the PW.1 (the plaintif) has stated the facts in accordance with the plaint averments which are briefly noted supra.
28.9 During the course of cross-examination the PW.1 has stated to the following efect: Sri Vase Anjaneyulu was residing along with Sri Vase Dasanna. The PW.1 does not know as to whether or not Sri Vase Anjaneyulu had any property. The PW.1 does not know if the property of said Sri Vase Anjaneyulu was situated nearby the suit property. Sri Vase Anjaneyulu died in 1987.
28.10 During the life time of Sri Vase Dasanna and also at present there are four portions in the house in the suit property. Two tenants were there in two portions in the suit property before the 87 O.S.No.5554/1998 death of Sri Vase Dasanna. In one portion of the suit property Sri Vase Dasanna and his wife were residing. In another portion of the suit property, the plaintif was residing. Since 1994 the plaintif is residing in a rented house. The plaintif is not having any property of his own.
28.11 It is not true to suggest that the PW.1 and his wife and children have sold the said property to Vase Anjaneyulu on 17-08-1992. It is not true to suggest that Sri Vase Anjaneyulu has brought up the PW.1 as his fostered son. It is not true to suggest that even though the PW.1 is a fostered son of Vase Anjanyulu and even though the PW.1 has executed the said sale deed dated 17-08- 1992, the PW.1 is deposing falsely regarding said two aspects.
88 O.S.No.5554/199828.12 It is true that Sri Nagaraju occupied the western rear portion of the suit property on the permission of Sri Balarangappa. The measurement of the property shown occupied by Sri Nagaraju measuring 15 feet from East to West and 27 feet from North to South. The property in possession of Sri Nagaraju is in the second floor. 28.13 It is not true to suggest that Sri Vase Dasanna was keeping good health at the time of his death. Sri Vase Dasanna had high blood pressure. The PW.1 is not in possession of any document to show that Sri Vase Dasanna was taking treatment for the said illness.
28.14 The PW.1 does not know who is Sri C. Mallikarjuna (a witness of the Will). Sri D. Kondappa and Sri D. Rangappa are dead. The PW.1 has not 89 O.S.No.5554/1998 learnt as to how Sri Balarangappa, Sri Kondappa and Sri Chikkarangappa have come into possession of the suit property.
28.15 It is not true to suggest that on 14-08- 1987 Sri Vase Dasanna had executed a registered Will in respect of suit property.
28.16 The PW.1 does not remember if portion of the suit property which is in occupation of Sri Kondappa and his son ad-measures 12 feet from East to West and 35 feet from North to South. To a question as to whether the PW.1 has made attempt to verify about the Will after the defendants have filed their written statement, the reply of the PW.1 is that Sri Vase Dasanna has not at all executed any such Will. The PW.1 has not learnt about the defence pleas taken by the defendants. The PW.1 90 O.S.No.5554/1998 does not know if the complete details of the Will are narrated in the written statement of the defence. It is not true to suggest that as per the Will Sri Balarangappa, Sri Kondappa and Sri Chikkarangappa are in possession of their respective portions in the suit property. It is not true to suggest that since the PW.1 knows about the said Will, the PW.1 is residing elsewhere in a rented house. It is not true to suggest that the PW.1 started residing in a rented house, the PW.1 never resided in the suit property and that the PW.1 was residing in the house of his paternal younger Uncle Sri Vase Anjaneyulu. It is not true to suggest that after selling the property of Sri Vase Anjaneyulu, the PW.1 is residing in a rented house.
29. From the above discussion the following facts stand settled :
91 O.S.No.5554/1998
29.1 The suit property was the absolute property of late Sri Vase Dasanna.
29.2 The Will is dated 14-08-1987.
29.3 Late Sri Vase Dasanna died on 30-11-
1988 leaving behind him his widow, 5 sons and 2 daughters.
29.4 During pendency of this suit, four sons of Sri Vase Dasanna and widow of Sri Vase Dasanna died.
29.5 No provision is made under the Will in favour of the widow of Sri Vase Dasanna. 29.6 The DW.1 has admitted that Sri Vase Dasanna had love and afection towards his wife. 92 O.S.No.5554/1998 29.7 The suit was once decreed by this Court on 23-11-2009. At the time of disposal of the suit by earlier judgment, the defendants No.1 to 4 had not appeared before the Court. But, however, the defendants No.1 to 4 had challenged the said decree before the Hon'ble High Court of Karnataka. Till filing of the Regular First Appeal, the Will had not seen the light of the day.
29.8 Two sons of Sri Vase Dasanna who are the beneficiaries under the Will have taken lead role in the execution of the Will. The said two sons viz., Sri Kondappa and Sri Rangappa are also attesting witnesses to the Will. In fact, having admitted the said fact, later on, the DW.1 has taken 'U' turn and made an attempt to say that one of the witnesses by name Sri Kondappa is not the son, but he is a 93 O.S.No.5554/1998 friend of Sri Vase Dasanna. An attempt is made by the learned Advocate who drafted the Will to say that Sri Kondappa and Sri Rangappa who are the witnesses in the Will are not the sons of Sri Vase Dasanna and that they are diferent persons. From the reading of the deposition of the DW.4 it is clear that he is not having acquaintance with the family members of Sri Vase Dasanna. In fact, he has stated at one point of his cross-examination that he has not seen any of the sons of Sri Vase Dasanna. But, DW.1 has stated that he has made attempt to find out the whereabouts of Sri Kondappa and another witness by name Sri Mallikarjuna and that he could not find their whereabouts. The Will says that one of the sons of Sri Vase Dasanna by name Sri Balarangappa is appointed as Administrator under the Will. Neither the Administrator under the Will nor the beneficiaries under the Will have 94 O.S.No.5554/1998 initiated any proceedings for probate or letters of administration of the Will.
29.9 Except three sons of Sri Vase Dasanna, all other legal heirs of Sri Vase Dasanna viz., his widow, his other two sons and his daughters are disinherited under the Will.
29.10 The original of the Will is not produced. Instead the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) have resorted to got direction from this Court to the Sub- Registrar to produce the certified copy of the Will. Accordingly through DW.2, the Sub-Registrar has produced the certified copy of the Will. 29.11 No efort is made by the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), 95 O.S.No.5554/1998 D4(b) and D4(d) to secure the register meant for LTM of Sri Vase Dasanna from the office of the Sub- Registrar.
29.12 Ex.D-12 does not contain the signature or the LTM of Sri Vase Dasanna or that of the scribe or that of the attesting witnesses. 29.13 The widow of Sri Vase Dasanna is the defendant No.5. She died during pendency of this suit. She has not stated anything about the Will. It is argued (in fact, suggested to DW.1) that since Sri Vase Dasanna had not executed any Will, the defendant No.5 has not stated anything about the Will.
29.14 It is an admitted fact that the beneficiaries under the Will alone are residing in the suit property.
96 O.S.No.5554/199829.15 The above discussion also shows that Sri Vase Anjaneyulu (a brother of Sri Vase Dasanna) had a property situated nearby the suit property which was sold by the plaintif and his family members like his wife and children. 29.16 The suit property is the self-acquired property of the testator.
30. In the wake of the above well settled propositions of facts borne out from the records of the case on hand, let me turn to the decisions relied on by the learned Advocates for the parties to the suit.
30.1 In Meenakshiammal (2005) ( supra) the Hon'ble Supreme Court has ruled at paras No.16 and 17 thus:
97 O.S.No.5554/1998
"16. We do not find any merit in this civil appeal. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before it accepts the will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case, the Court would normally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.
17. In the present case, the evidence on record indicates that Siva was a bachelor. His relationship with his real sister Kamakshi was not cordial. The deceased used to live with his step sister Kaveri. At the time of the execution of the will, Siva was 85 years old and had sufered fracture. He was mentally alert. He was looked after by the defendants. The plaintifs were nowhere in sight during his hospitalization or his treatment. In the circumstances, the defendants have proved 98 O.S.No.5554/1998 the reason for exclusion of the plaintifs from the benefits under the will."
30.2 In Dhanpat (2020) (supra) the Hon'ble Supreme Court has ruled at para No.29 thus:
"29. We do not find any merit in the said argument as well. The 13 (2003) 2 SCC 91 statement of Maha Singh produced on record shows that he along with Azad Singh, the other attesting witness and the testator had signed the Will. In the cross-examination, the statement that he has signed the Will had not been disputed nor that the testator or the other attesting witness was not present at that time. Therefore, the ratio of the aforesaid judgment is not applicable to the facts of the present case. In fact, it is finding of fact, recorded by the First Appellate Court."
30.3 In Prabhakara (2021) (supra) the Hon'ble Supreme Court has ruled at para No.24 thus:
"24. A testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of 99 O.S.No.5554/1998 the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue."
30.4 In Vimalchand Ghevarchand Jain (2009) (supra) the Hon'ble Supreme Court has ruled that a registered deed of sale carries presumption that the transaction was a genuine one and that if the execution of the sale deed is proved, onus is on defendant to prove that the deed was not executed and it was a sham transaction.
30.5 In Dhanpat (supra) at para 15 the Hon'ble Supreme Court has reproduced a passage from a judgment of the Hon'ble Privy Council, which reads as under :
"It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross- examined, this result would follow all the more.100 O.S.No.5554/1998
There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor, or some one whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered."
30.6 At para 17 in Bharpur Singh and Others (supra) the Hon'ble Supreme Court has explained the likely suspicious circumstances which one may come across while dealing with the Will in the following words :
"17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.101 O.S.No.5554/1998
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts. "
30.7 The learned Advocate for the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) has relied upon a judgment of the Hon'ble Supreme Court in Vishwanath Bapu Rao Sabale (supra) for the very same proposition of law.
30.8 The learned Advocate for the defendants No.1A(a), D2(a), D2(c), D3(a), D3(b), D3(d), D3(e), D4(b) and D4(d) has relied upon a judgment of the Hon'ble High Court of Karnataka in LAWS(KAR)-2010-10-212 in the matter of K.S. Natraj vs. K.S. Natraj, D.D. on 21-10-2019. In the said 102 O.S.No.5554/1998 judgment the Hon'ble High Court has ruled that there is presumption regarding registered documents. In the said case the proceedings was under Sec.372 of the Indian Succession Act 1925 in respect of movable shares.
30.9 In Mrs. Hem Nolini Judah (supra) the Hon'ble High Court has ruled that under Sec.213 of the Succession Act 1925 there is a bar for establishing the rights of a legatee unless the probate or letter of administration is obtained. 30.10 In Bharpur Singh (supra) the Hon'ble Supreme Court has reiterated the legal position regarding proof of a Will as enunciated in its earlier judgment in H. Venkatachala Iyangar (supra). It is further held by the Honb'le Apex Court that even though a Will is a registered one, it does not mean 103 O.S.No.5554/1998 that statutory requirements of proving Will need not be complied with.
30.11 In Ramesh Verma (supra) the Hon'ble Apex Court has ruled that one Ramesh therein had maneuvered Will and that the execution of the Will therein was not acceptable.
30.12 The suspicious circumstances in the present case as highlighted supra are one of the sons of Sri Vase Dasanna (who is also a beneficiary under the Will) is appointed as the Administrator. Two of the attesting witnesses to the Will are the beneficiaries under Will. Whereabouts of the other attesting witness to the Will are not known to the propounder. None of the attesting witnesses are examined. As noted supra, one can find two versions of the DW.1 regarding Sri Kondappa or 104 O.S.No.5554/1998 Rangappa who are shown as attesting witnesses to the Will. At one point of time, the DW.1 has stated that they are none other than his father and his paternal Uncle. At the other point of time, he has said that they are not the sons of Sri Vase Dasanna. The said two witnesses being the beneficiaries have taken active role in the execution of the Will. The said two witnesses were alive even after filing of this suit. The Will had not seen the light of the day for almost more than two decades. The original of the Will is not produced even though the beneficiaries of the Will have taken active role in the execution of the Will. The scribe of the Will also does not appear to be credit-worthy, in the sense that he has given two versions regarding his acquaintance with the children of Sri Vase Dasanna. At once he has stated that he does not know the children of Sri Vase Dasanna and at the other breath he has stated that 105 O.S.No.5554/1998 two witnesses to the Will by name Sri Rangappa and Sri Kondappa are not the sons of the testator, but they are diferent persons. The Ex.D-12 does not appear the signatures of the testator and also the testing witnesses.
30.13 When the facts of the present case are analyzed in the light of the law declared in Bharpur Singh case, one can find that though the beneficiaries under the Will have taken a lead role in the execution of the Will, even up-to-date the original Will has not seen the light of the day even though more than three decades have elapsed. The facts regarding claim of rights by the L.Rs of the defendants No.1 to 4 are covered under one or the other suspicious circumstances enumerated supra by the Hon'ble Apex Court. Hence, additional issues No.3 to 6 are held in the negative.
106 O.S.No.5554/1998
31. Issue No.1 and Additional Issue No.7:-
The suit property is held to be the absolute property of late Sri Vase Dasanna. It is held that the Will is not proved. Hence, inheritance of all the heirs of late Sri Vase Dasanna is not interfered that by late Sri Vase Dasanna through any testamentary document. In that view of the matter, the plaintif and the defendants would become tenants in common in respect of suit property. They must be held to be in constructive possession of the suit property. They are entitled to be in possession of the suit property till the suit property is divided by metes and bounds. Hence, issue No.1 and additional issue No.7 are held in the affirmative.
32. Issue Nos.2 and Additional Issue No.8:-
The plaintif and the deceased defendants No.1 to 4 107 O.S.No.5554/1998 are the sons, the deceased defendant No.5 is a widow and the defendants No.6 and 7 are the daughters of late Sri Vase Dasanna. Under Section 8 of the Hindu Succession Act 1956 the plaintif as well as all the original defendants No.1 to 7 are the Class-I legal heirs. As noted supra, the defendants No.1 to 5 died during the pendency of this suit. The L.Rs of the defendants No.1 to 4 have come on record. The L.Rs of the defendants No.1 to 4, the plaintif and the defendants No.6 and 7 are the L.Rs of the deceased defendant No.5. The suit property has to be divided per strip among the plaintif, the defendants No.6 and 7 and the branches of the deceased defendants No.1 to 4. Hence, the plaintif is entitled to 1/7th share, each branch of the deceased defendants No.1 to 4 have 1/7th share each, the defendant No.6 is entitled for 1/7th share and the defendant No.7 is entitled to 1/7th share. In 108 O.S.No.5554/1998 view of these conclusions, additional issue No.8 is held in the affirmative. The issue No.2 is answered by holding that the plaintif is entitled to 1/7th share in the suit property.
33. Issue No.3 :- Hence, the following :In order to avoid the closing of the suit sine die, suo motu the Court has ordered for registration of the Final Decree Proceedings case and to post the matter before the Court on the appointed date as mentioned in the operative portion of this judgment with notice to all the parties to appear in the Final Decree Proceedings case without expecting further notice from the Court in the Final Decree Proceedings case. Hence, the following : 109 O.S.No.5554/1998
ORDER (1) The suit is decreed with costs.
(2) It is declared that the suit house property is available for partition between the plaintif and the defendants.
(3) It is further declared that the share of the plaintif and defendants No.6 and 7 in the suit property is 1/7th share each.
(4) The decision on mesne profits is deferred to the Final Decree Proceedings stage.
(5) Draw preliminary decree accordingly.
(6) The office is directed to register the Final Decree Proceedings case suo motu in view of the guidelines issued by the Hon'ble Supreme Court in AIR 2022 110 O.S.No.5554/1998 Supreme Court 2841 - Kattukandi Edathil Krishnan and another vs Kattukandi Edathil Valsan and others; and also in Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Ors. [(2009) 9 SCC 689], and post the matter (Final Decree Proceedings case) before the Court for further proceedings on 16.12.2022. (7) Either the plaintif or any of the defendants jointly or severally may file an application for Final Decree proceedings under Order XX Rule 18 of the Code of Civil Procedure, 1908, in the Final Decree Proceedings case and also file a copy of the judgment and preliminary decree and other necessary documents for the purpose of Final Decree Proceedings.
(8) The parties shall note that no separate notice would be issued to them for holding Final Decree Proceedings and that they shall appear before this Court 111 O.S.No.5554/1998 on 16.12.2022 to participate in the Final Decree Proceedings.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 15th day of October, 2022).
(D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Sri A. Adinarayana - 19.02.2020
(b) Defendants side :
D.W.1 Sri D.K. Pavan kumar - 22.02.2021 D.W.2 Smt. Vimalamma C.M. - 14.09.2021 DW.3 Sri M.G. Suresh Holla - 11.11.2021 DW.4 Smt. Lakshmidevamma - 07.12.2021 112 O.S.No.5554/1998 List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of sale deed dated
31.03.1960
Ex.P.2 Encumbrance certificate dated 19.07.2006
Ex.P.3 Encumbrance certificate dated 30.10.2009
Ex.P.4 Office copy of legal notice dated 10.10.1996
Ex.P.5 Postal cover
Ex.P.5(a) Original notice
Ex.P.6 Death certificate dated 24.04.2008
Ex.P.7 Birth certificate dated 03.01.1987
Ex.P9-12 Postal receipts (4)
Ex.P.13 & Acknowledgements (2)
14
Ex.P.15 Death certificate of Kondappa D.
(b) Defendants side :
Ex.D.1 Certified copy of sale deed dated
26.09.1960
Ex.D.2 Certified copy of sale deed dated
17.08.1992
Ex.D.3 Encumbrance certificate from
01.04.1960 to 31.03.1971
Ex.D.4 Encumbrance certificate from
01.05.1971 to 31.03.2004
Ex.D.5 Encumbrance certificate from
01.04.2004 to 16.01.2021
Ex.D.6 Property Tax receipt for year 2002 to
2008
Ex.D.7 to Property tax receipts (5)
11
113 O.S.No.5554/1998
Ex.D.12 Original Register of Wills
Ex.D12(a) Certified copy of Ex.D.12
Ex.D.12(b) Typed copy of Ex.D.12
Ex.D.13 Original special power of attorney
Ex.D.14 Certified copy of sale deed dated
19.12.1929
Ex.D.14(a) Translated copy of Ex.D.14
Ex.D.15 Encumbrance certificate
Ex.D.15(a) Translated copy of Ex.D.15
Ex.D.16 Certified copy of sale deed dated
14.05.1959
Ex.16(a) Translated copy of Ex.D.16
Ex.D.17 Encumbrance certificate
Ex.D.17(a) Translated copy of Ex.D.17
VI Addl.City Civil & Sessions Judge Bengaluru City 114 O.S.No.5554/1998