Bangalore District Court
Sri. B.H. Shanthakumar vs Smt. Gangamma on 7 November, 2022
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 07th day of November, 2022.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.7459/2005
PLAINTIFFS :1. Sri. B.H. Shanthakumar
Since dead by his LRS
1(a). Sri. S. Ashok Kumar
Aged about 50 years
S/o. Late B.H Shanthakumar
R/at No.31/A, 15/2,
Muniyappa Layout,
Hongasandra,
Near Om Shakthi Temple,
Bengaluru South Taluk,
Bengaluru - 560068.
1(b). Sri. S. Umesh
Aged about 45 years
S/o. Late B.H Shanthakumar
R/at No.31/A, 15/2,
Muniyappa Layout,
Hongasandra,
Near Om Shakthi Temple,
Bengaluru South Taluk,
Bengaluru - 560068.
1(c). Sri. S. Ramachandra
Aged about 42 years
S/o. Late Shanthakumar
Cont'd..
-2- O.S. No.7459/2005
R/at No.187/1, 9th Main,
5th Cross, Muniyappa Layout,
Hongasandra, Begur Hobli,
Bengaluru South Taluk,
Bengaluru - 560068.
1(d). Sri. S. Manjula
Aged about 38 years
D/o. Late Shanthakumar
R/at # 1064, O.T.C Road,
Chamarajpet,
Bengaluru - 560062.
2. Sri. Ashwaatha
Aged about 57 years
S/o. Late Hanumanthappa
R/at No.515, Nagaiahnapalya,
Indiramma Building,
M.S Nagar Post,
Bengaluru - 560033.
3. Sri. H. Srinivasa
Aged about 52 years
S/o. Late Chikka Hanumanthapa
R/at No.367, Belandur Village
& Post, Bengaluru - 560037.
4. Sri. Srinivasa
Aged about 27 years
S/o. Narayanappa
R/at No.6-A, Railway Quarters,
Krishnarajapura Railway
Station, Bengaluru - 560036.
(Plaintiff No.1 died)
(Plaintiff No.2 & 4 by Sri N.S Sheshadri Advocate)
(Plaintiff No.3 by Sri.Lokesh.C Advocate)
-VERSUS-
DEFENDANT : Smt. Gangamma
Aged about 45 years
W/o. Gurumurthy
R/at janatha Colony,
Cont'd..
-3- O.S. No.7459/2005
Doddanekkundi Villalge,
Carmelaram Post,
Varthur Hobli, Sarjapura
Road, Bengaluru - 560035.
(By Sri V. Shiva Kumar., Advocate)
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Date of Institution of the Suit : 29-09-2005
Nature of the Suit (Suit on : Declaration
and Injunction
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 26-05-2011
of recording of the evidence
Date on which the Judgment : 05-11-2022
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration 17 year, 1 months, 10 days
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(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This suit is filed by the plaintiffs seeking declaration and permanent injunction in respect of Sy.No.10/P-6, measuring 16 guntas situated at Doddakannelli Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru.
Cont'd..
-4- O.S. No.7459/2005
2. The brief facts of the plaintiffs case are as under -
The plaintiff's uncle namely Sri. Narayanappa S/o. Sunnakall Kempaiah was the original owner of the suit property which was measuring 20 guntas, he had acquired the same under Government Grant. The said Narayanappa and his wife Muniyamma had no issues, subsequent to the death of Narayanappa revenue records of the suit property were mutated in the name of Muniyamma and the said Muniyamma had alienated 4 guntas of land and retained 16 guntas. The said Muniyamma has also died on 21-04-1998. After the death of Muniyamma the plaintiffs who are the sons of Narayanappa's brother being Class-I legal heirs have succeeded to the suit property and they are in possession of the same. The Narayanappa's father namely Sunnakal Kempaiah had four sons namely Munivenkatappa, Hanumanthappa, Chikka Hanumanthappa and Narayanappa, Plaintiffs No.1 and 2 are the sons of Hanumanthappa, Plaintiff No.3 is son of Chikka Hanumanthappa and Plaintiff No.4 is the grand son of Munivenkatappa, these being facts, when Cont'd..
-5- O.S. No.7459/2005 the plaintiffs approached the revenue authorities to get the katha mutated in their names, by looking to RTC they came to know that name of the defendant is entered as Kathadars and defendant's name has been entered as daughter of Muniyamma. In fact the defendant is not the daughter of Narayanappa and Muniyamma, she falsely claimed that she is the daughter of Muniyamma. Without verifying the truth revenue authorities have entered defendant name in the revenue records of the suit property. When plaintiffs enquired about her claim, she gave evasive answer and she refused to withdraw her claim over the suit property, now she is trying to alienate the suit property to third parties. Therefore, the plaintiffs are constrained to file the present suit seeking declaration and permanent injunction.
3. After service of summons, the defendant has appeared and filed written statement as under -
The suit filed by the plaintiffs is not maintainable and same is liable to be dismissed. Plaintiffs are the strangers to the present case. They filed the suit only to Cont'd..
-6- O.S. No.7459/2005 harass the defendant. The averments of Para 2 of the plaint that, plaintiff's uncle namely Sri.Narayanappa was the owner of Sy.No.10/P-6 of Doddakannalli Village, Varthur Hobli, Bengaluru East Taluk, measuring 20 guntas, the same is acquired under Government Grant is true and correct. Further averments of Para 3 of the plaint that, the said Narayanappa had a wife namely Smt. Muniyamma and they had no issues is also true and correct. But during life time of Narayanappa and Muniyamma they adopted the defendant as their daughter and from the date of adoption defendant was residing with them. The plaintiffs have suppressed the said fact and Narayanappa died leaving behind the wife and adopted daughter to succeed his estate. After the death of Narayanappa, Muniyamma's name was entered in the revenue records and Muniyamma sold 4 guntas of land to one Sri.Cherian. Later the said Smt. Muniyamma also died on 21-04-1998, leaving behind her adopted daughter Gangamma. The averments of the plaint that, after the death of Muniyamma the plaintiffs being the sons of Narayanappa's brothers have succeeded to the Cont'd..
-7- O.S. No.7459/2005 suit property as Class-I legal heirs and they are in possession of the suit property are all false and denied. During lifetime of Narayanappa and Muniyamma they constructed a house in the suit property and they were living together along with their daughter. They also performed the marriage of defendant and defendant also residing in the said house along with her husband and parents. During lifetime of Muniyamma she had executed a Will dated: 16-01-1998 infavour of her adopted daughter Gangamma. On the basis of said Will she bequeathed the suit property to defendant and defendant became the owner of the suit property and she is in possession of the same. Plaintiffs have no right over the suit schedule property. In view of execution of the Will deed by Muniyamma question of plaintiffs being Class-I legal heirs and succeeding the suit property does not arise at all. The averments of Para 4 of the plaint are not admitted, the Genealogical Tree produced by the plaintiffs issued by village accountant is not correct, said Genealogical Tree is created for the purpose of the suit. The averments that the suit property was self acquired property of the Cont'd..
-8- O.S. No.7459/2005 Narayanappa, and in view of death of Narayanappa and his wife Muniyamma issue-less it devolved upon the plaintiffs as Class-I legal heirs is false. Since, all the children of deceased brothers of Narayanappa are not made as parties to the suit, suit is bad for non-joinder of necessary parties also. Averments of Para 5 of the plaint that on 18-07-2005, when the plaintiffs approached the revenue authorities to get katha of the suit property in their name they came to know that the defendant's name has been entered in the revenue records of the suit property as daughter of Muniyamma is false and denied. In fact the plaintiffs are strangers to the suit property and they are no way concerned to the same. The suit property has been bequeathed in favour of defendant, knowing well that the defendant is adopted daughter of Narayanappa and Muniyamma and same has been bequeathed by Muniyamma by executing Will, the plaintiffs have filed the false suit, the plaintiffs have no right over the suit property. The defendant is in possession of the suit property as owner theiroff. Averments of Para 6 of the plaint are all false and denied. Plaintiffs never approached the defendant Cont'd..
-9- O.S. No.7459/2005 even till today and defendant is not seen any of the plaintiffs. Hence, the averments of Para No.6 of the plaint are all vague and bald. Averments that, now the defendant is trying to alienate the suit property are false and denied. There is no cause of action to file the present suit. Hence, suit of the plaintiffs is liable to be dismissed.
4. On the basis of the above facts, the following Issues have been framed -
ISSUES
1. Whether plaintiffs prove that the genealogical tree produced by them?
2. Whether plaintiffs prove that they are the owners of the suit schedule property?
3. Whether the defendant proves that she is the adopted daughter of Sr. Narayanappa and Smt. Muniyamma?
4. Whether the defendant proves that Smt. Muniyamma bequeathed the suit schedule Cont'd..
- 10 - O.S. No.7459/2005
property to her by executing a
Will?
5. Whether the plaintiffs prove that they were in lawful possession and enjoyment of the suit schedule property on the date of suit?
6. Whether the Court fee paid is sufficient, proper and correct?
7. Whether the plaintiffs prove that the defendant has illegally interfered with their possession of the sit schedule property?
8. To what relief the plaintiffs are entitled to?
9. What order or decree?
5. In support of the case of the plaintiffs, the plaintiffs have examined plaintiff No.1 as P.W.1 and also examined two more witnesses as P.Ws.2 and 3 and got marked documents as per Exs.P.1 to P.19 on behalf of the plaintiffs.
Cont'd..
- 11 - O.S. No.7459/2005
6. On the other hand, Power of Attorney holder of defendant got examined as D.W.1 and also examined three more witness as D.W.2 to 4 and got marked Exs.D.1 to D.39 on her behalf.
7. Heard arguments.
8. My findings on the above Issues are as follows -
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 ISSUE No.7 - In the Negative ISSUE No.8 - In the Negative ISSUE No.9 - As per final order, for the following -
REASONS
9. ISSUE NOs.1 TO 4 : Since all these Issues are inter-related to each other, they are being taken up together for discussion at a stretch in order to avoid repetitive discussion of facts.
Cont'd..
- 12 - O.S. No.7459/2005
10. It is the case of the plaintiffs that, the deceased Narayanappa was the resident of Doddakannelli Village, he has obtained Sy.No.10/P-6 measuring 20 guntas of Doddakannelli Village as grant from Government. Narayanappa and his wife Muniyamma died issue-less. Therefore, the plaintiffs being the sons and daughter of Narayanappa's brother are Class-I legal heirs of Narayanappa and Muniyamma. Therefore, immediately after the death of Muniyamma they became owner of the suit schedule property left by Narayanappa and Muniyamma.
11. On the other hand the defendant has contended that, as Narayanappa and Muniyamma had no issues, they adopted the defendant and Muniyamma has executed Will deed dated: 16-01-1998. On the basis of said Will defendant became the owner of the suit schedule property. After the the death of Narayanappa, Muniyamma has sold 4 guntas of land accordingly, only 16 gunta is remaining and defendant is in possession of the said 16 guntas as owner there off. Therefore, though the relationship of the plaintiff with Cont'd..
- 13 - O.S. No.7459/2005 Narayanappa and Muniyamma is admitted the plaintiffs will not get any right over the suit schedule property.
12. During arguments plaintiffs counsel has argued that, there is no pleading with regard to adoption of defendant, hence, evidence of DW.1 regarding her adoption is also not helpful to the defendant and as Muniyamma and defendant are all same age, even if it is contented by the defendant that, she is the adopted daughter of Narayanappa and Muniyamma, any such adoption is invalid and defendant has failed to prov the Will also. Therefore, when the plaintiffs are admittedly children of the brothers of Narayanappa, being Class-I legal heirs of Narayanappa and Muniyamma became the owners of suit schedule property. Hence, the plaintiffs are entitled for the relief.
13. The counsel for plaintiff No.3 has relied upon following decisions reported in 1) 2021(4) KCCR 3235 (DB) Smt.Jaywanthi K. Kapadia V/s. Dhanushkhlal Venilal and Others "HINDU LAW - Partition - Plaintiff taking specific stand that she and defendants Cont'd..
- 14 - O.S. No.7459/2005 constitute HUF - Other materials on record also showing existence of coparcenary - Will produced by defendants surrounded by suspicious circumstances - Dismissal of suit not proper - Judgment and decree set aside - Suit decreed - Plaintiff entitled to partition and separate possession of her shares.
2) 2021(4) KCCR 3648 Jagadayya V/s. Smt.Kamallavva and Another HINDU ADOPTION AND MAINTENANCE ACT, 1956 - Sections 3(a), 10 and 11 - Validity of adoption - Adoption of child aged 17 years - Custom in regard to - Not proved - No endorsement found on adoption deed that genetic parents of child have consented for giving in this behalf not liable to be interfered with.
3) 2021(4) KCCR 3315 Dareppa Rajgouda Patil V/s. Balkrishna Krishna Patil and Others A. ADOPTION - HINDU LAW - Adopting a child - Age of child - Relevant child aged above 15 years - No custom pleaded and proved - Adoption invalid.
B. HINDU ADOPTION AND MAINTENANCE ACT, 1956 - Sections 6, 10, 12 - Requisition of valid adoption - Person who may be adoption - Effect of adoption - Child aged more than 15 years - Custom must be pleaded and proved - Failing which adoption is invalid.
C. CUSTOM - Legal requirement - Source - Pleading and proof - No pleading and proof - Customs not proved.
Cont'd..
- 15 - O.S. No.7459/2005
14. On the other hand defendants counsel
argued that regarding production of sufficient evidence about adoption and Will. He also argued about non- joinder of necessary parties to the suit and also on the ground of limitation and plaintiffs entitlement for declaration relief without claiming the relief of possession.
15. The counsel for defendant has relied upon following decisions reported in 1) (1973)2 SCC 60 Ram Saran and Another V/s. Smt.Ganga Devi Specific Relief Act, 1877 - Section 42 - Suit for declaration of ownership and not possession, held, not maintainable.
2) 1980 ILR Karnataka 103(B), 3) ILR 2007 KAR 339 Sri. Aralappa V/s. Sri. Jagannath and Other (B) SPECIFIC RELIEF ACT, 1963 - SECTION 34
- Declaration of status or right - Discretion of Court - Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit - Further held, when the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief - The appropriate relief consequential to declare of Cont'd..
- 16 - O.S. No.7459/2005 ownership would be recovery of possession of the property - Where the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable - Court below was justified in dismissing the suit as not maintainable - Appeals are dismissed.
4) AIR 2004 SC 2926 Food Corporation of India and Others V/s. M/s. Babulal Agarwal (C) LIMITATION ACT (36 of 1963), S.3 - Bar of limitation - Plea of - Need not be raised - It is duty of Court to check at threshold whether suit is barred or not - But in all fairness it is always desirabe that defendant raises it in pleadings so that other party may note the basis of such plea
- Such plea, if not earlier, should be raised at least at appellate stage - Objecting party is not supposed to conveniently keep quit till matter reaches Apex Court - And raise plea before Apex Court that Court failed in its duty in not dismissing the suit is barred by time.
5) (2005) 4 SCC 613 V.M Salgaocar and Bros V/s. Board of Trustees of Port of Mormugao and Anotherwhere in it is held that:
Limitation Act, 1963 - S.3 - Waiver of limitation
- Even if defendant intentionally does not raise the plea of limitation, if the suit is ex facie barred by law of limitation, court has no choice to dismiss the same.
16. On perusal of evidence of both the parties to the suit and arguments of their respective counsels it Cont'd..
- 17 - O.S. No.7459/2005 appears to me that, with regard to relationship of the plaintiffs with Narayanappa, in the written statement and also in the evidence, the defendant has all along admitted that the plaintiffs are the children of brothers of Narayanappa. Therefore, there is no dispute regarding genealogy of the plaintiffs as claimed in the plaint.
17. With regard to the adoption of defendant is concerned, defendant has contended that she is the adopted daughter of Narayanappa and Muniyamma. No where in the written statement it is pleaded about the time of taking her adoption and also the ceremony taken place for taking her in adoption and defendant has not at all produced any adoption deed regarding her adoption by Narayanappa and Muniyamma. Even in evidence also DW.1 to 4 have deposed that, Gangamma is the fostered daughter of Narayanappa and Muniyamma and the defendant has not entered into witness box to say about alleged adoption and also ceremonies that have taken place for taking her in adoption. Even during cross-examination of DW.1 who Cont'd..
- 18 - O.S. No.7459/2005 is son of defendant has admitted that, Gangamma is the fostered daughter of Muniyamma, which shows that, there is no evidence available on record regarding adoption of the defendant. Therefore, though there is sufficient evidence to show that, since from her childhood defendant was residing with Narayanappa and Muniyamma and even after the death of Muniyamma she continued in the suit schedule property, the same is not sufficient to show that defendant is the adopted daughter of Narayanappa and Muniyamma. Therefore, defendant's contention that, she is the adopted daughter of Narayanappa and Muniyamma is not supported with valid evidence.
18. With regard to the Will allegedly executed by Muniyamma in favour of defendant is concerned, DW.3 & 4 are attesting witnesses to the Will marked as Ex.D.39 have deposed in detail about execution of Will by Muniyamma. Both have deposed that, Muniyamma has put her thumb impression on Ex.D.39 and their presence during execution of the Will. Even DW.3 & 4 have deposed in detail about relationship of plaintiffs Cont'd..
- 19 - O.S. No.7459/2005 and defendant and possession of the defendant over the suit schedule property after the death of Muniyamma. During cross-examination of PW.1 also he has admitted that, after the death of Muniyamma the defendant has constructed another house in the suit schedule property and she continued to reside in the same. Even in cross-examination of DW.3 suggestions are made regarding construction of the house by Gangamma and Narayanappa and Muniyamma keeping defendant in their house. Even if there are some discrepancies are their in the evidence of DW.3 & 4, as DW.3 & 4 are examined after 20 years from the date of Will deed, such small discrepancies are quit natural. Evidence of DW.3 & 4 cannot be thrown away because of such small discrepancies in their evidence. Though the plaintiff's counsel has relied upon the judgment of Hon'ble High Court of Karnataka reported 2021(4) KCCR 3235, facts in that case are different from the facts in the present case and in the present case DW.3 & 4 have clearly identified the thumb impression of Muniyamma. Therefore, the evidence produced by the defendant to prove the Will deed marked as Ex.D.39 is Cont'd..
- 20 - O.S. No.7459/2005 sufficient and there is no reason to suspect the evidence of DW.3 & 4. Therefore, the defendant has produced sufficient evidence to show about the execution of Will dated: 16-01-1998 by Muniyamma. Accordingly on the basis of Will, defendant became the owner of suit schedule property and she is in possession of the same.
19. Further the defendant has produced documents like revenue receipts and RTCs, from which also it appears that immediately after the death of Muniyamma, name of defendant has been entered in the revenue records of the suit schedule property and she is in possession of the same by paying land revenue and she also constructed a house in the suit schedule property and residing there in. Therefore, the said evidence also supports the contention of the defendant with regard to execution of the Will by Muniyamma. Accordingly, being beneficiary in the Will executed by Muniyamma, defendant became the owner of the suit schedule property and she is in possession of the Cont'd..
- 21 - O.S. No.7459/2005 same. Therefore, Issues No.1 to 4 are answered as above.
20. ISSUES No.5 & 7 : As already discussed above while answering Issues No.1 to 4, the defendant has produced sufficient evidence regarding execution of Will by Muniyamma and defendant is in possession over the suit schedule property from the date of death of Muniyamma till filing the suit. Further in the cross- examination of PW.1 he has admitted that, after the death of Muniyamma the defendant has constructed another house in the suit schedule property and she is in possession of the suit schedule property, it also shows that, from the date of death of Muniyamma, the defendant is in possession of the suit schedule property as owner there off. Hence, the plaintiffs contention that, on the date of filing the suit they are in possession of the suit schedule property and defendant is trying to interfere with their suit schedule property appears to be incorrect. Therefore, Issues No.5 & 7 are answered in the Negative.
Cont'd..
- 22 - O.S. No.7459/2005
21. ISSUE No.6 : Though the defendant has contended that, court fee paid by the plaintiffs is not sufficient. The defendant has not seriously pressed the issue and from the valuation slip also appears that, the court fee by the plaintiffs is sufficient. Therefore, Issue No.6 is answered in the Affirmative.
22. ISSUE No.8 : Since, the plaintiffs have failed to produce evidence regarding possession of the suit schedule property and their title over the suit schedule property and defendants interference in their possession and at the same time, the defendant has produced evidence to show that on the basis of Will executed by Muniyamma she became the owner of the suit schedule property and she is in possession of the same. Hence, plaintiffs are not entitled for the relief of declaration and permanent injunction as claimed by them. Therefore, Issue No.6 is answered in the Negative.
23. ISSUE No.9 : For my reasons and discussion on the above Issues , I proceed to pass the following -
Cont'd..
- 23 - O.S. No.7459/2005
ORDER
Suit of the plaintiffs is hereby
dismissed with cost.
Draw decree accordingly.
(Dictated to Stenographer, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 07th day of November, 2022.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : B.H Shanthakumar 26-05-2011 P.W.2 : Smt. Muniyamma P.W.3 : Srinivasa Naidu
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Mutation copy.
Exs.P.2 to 5 : RTC extracts.
Ex.P.6 : Death certificate.
Ex.P.7 : Genealogical tree.
Exs.P.8 & 9 : Encumbrance certificates.
Ex.P.10 : Legal heir ship registration extract
Exs.P.11 to 14 : RTC extracts.
Ex.P.15 : Encumbrance certificate.
Ex.P.16 : Department letter dated 02-03-1967.
Cont'd..
- 24 - O.S. No.7459/2005
Ex.P.17 : Copy of order passed by Ass.
Commissioner dated: 15-06-2009.
Ex.P.18 : Objection of RA. Ex.P.19 : Sale deed dated: 04-04-1997.
3. WITNESS/ES EXAMINED FOR THE DEFENDANTS:
Examined on:
D.W.1 : G. Manjunath 30-03-2016 D.W.2 : Smt. Lakshmamma D.W.3 : K.N.V Venugopal D.W.4 : K.M Rajashekar
4. DOCUMENT/S MARKED ON BEHALF OF DEFENDANTS:
Exs.D.1 to 3 : Photographs. Ex.D.4 : Death certificate. Ex.P.5 : Photograph. Ex.P.6 : Medical certificate. Ex.D.7 : Death certificate. Ex.P.8 to 10 : Tax paid receipts. Ex.D.11 : Invitation card. Ex.D.12 : Form No.8. Exs.D.13 to 19 : RTC extracts.
Ex.sD.20 to 24 : Electricity bills.
Exs.D.25 to 27 : Acknowledgments.
Ex.D.28 : Letter dated 16-06-2008
Ex.D.29 : Copy of Revision Petition No.129/2010
Ex.D.30 : Rojaname
Exs.D.31 to 36 : Photographs
Cont'd..
- 25 - O.S. No.7459/2005
Ex.D.37 : CD
Ex.D.38 : Power of Attorney dated 25-02-2016
Ex.D.39 : Will dated 16-01-1998
(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..