Bangalore District Court
Sri. S.Krishnappa vs Smt.Lakshmi Devi on 4 November, 2020
1 O.S.No.8837/2011
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.31)
DATED THIS THE 4 th DAY OF NOVEMBER 2020
PRESENT:
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru City.
O.S.NO.8837/2011
PLAINTIFF/S : 1. Sri. S.Krishnappa
S/o Late M.Ramakka and
Late Shamanna,
Aged about 66 years,
No.22/2, 1st Main Road,
6th Cross, Sirsi Circle,
Chamarajapet, Bangalore-560018.
2. Smt.S.Jayamma,
W/o Narayanappa,
D/o Late Ramakka & Late Shamanna
Aged about 60 years,
No.43, Jabbar Block, 2nd Main,
Vayalikaval, Bangalore-560003.
3. Sri.S.Rajanna
S/o Late Ramakka & Late Shamanna
Aged about 59 years,
No.10, 1st Main Road,
1st Cross, Shamanna Nagar,
Bangalore-560026.
4. Smt.S.Lakshmi
W/o Mahesh,
D/o Late Ramakka & Late Shamanna
Aged about 55 years,
No.10, Muneshwara Block,
Cholanayakana Halli,
R.T.Nagar Post, Bangalore-560032.
2 O.S.No.8837/2011
5. Sri.S.Asoka
S/o Late Ramakka & Late Shamanna,
Aged about 48 years,
No.92, 3rd Main Road, 7th Cross,
Chamarajpet, Bangalore-5600018.
6. Sri.S.Murthy
S/o Late Ramakka & Late Shamanna,
Aged about 47 years,
No.7/2, 5th Main Road,
Sameerapuram, K.G.Nagar,
Bangalore-560018.
7. Smt.S.Prema
W/o Narayana Swamy,
D/o Late Ramakka & Late Shamanna,
Aged about 46 years,
No.272, 7th Cross, 4th Main,
Srinivasanagar, Bangalore-560050.
8. Smt.S.Bhagyamma,
W/o Narayana Swamy,
D/o Late Ramakka & Late Shamanna,
Aged about 45 years,
No.100, Bagalur,
Bangalore-North Taluk.
9. Sri.S.Jagadish,
S/o Late Ramakka & Late Shamanna,
Aged about 44 years,
No.51/4, 2nd Main Road,
5th Cross, Chamarajpet,
Bangalore-560018.
10. Smt.S.Manjula,
W/o Ramachandra,
D/o Late Ramakka & Late Shamanna,
Aged about 42 years,
No.53, 3rd Cross,
Murugesh Palya,
Bangalore-560070.
3 O.S.No.8837/2011
11. Sri.Srinivasa Murthy,
S/o Late M.Ammayyamma,
Aged about 55 years,
No.53, Maheshwarinagar,
B.B.Road, Yelahanka,
Bangalore-560064.
12. Sri.M.Vasu,
S/o Late M.Ammayyamma
Aged about 50 years,
No.53, Maheshwarinagar,
B.B.Road, Yelahanka,
Bangalore-560064.
13. Smt.M.Meenakshi,
W/o Madhu Gowda,
D/o Late M.Ammayyamma,
Aged about 46 years,
No.44, 3rd Cross, Sameerapuram Road
K.G.Nagar, Bangalore-560018.
14. Smt.Munirathnamma,
W/o Ramappa, D/o Late Munirangaiah,
Aged about 43 years, No.33/1, 2nd Cross,
A.V.Bar Road, Muneshwara Layout,
Bannerghatta Road, Bangalore-560076.
15. Smt.Kumuda,
W/o Prakash,
D/o Late Muniragaiah,
Aged about 41 years,
No.186, 1st Cross, Dattatreya Extension,
K.G.Nagar, Bangalore-560019.
16. Smt.Nirmala,
W/o Prashanth,
D/o Late Munirangaiah,
Aged about 40 years,
No.64, 5th Cross, Devarachikkanahalli,
Bannerghatta Road, Bangalore-560076.
4 O.S.No.8837/2011
17. Smt.Anitha
W/o Ravikumar, D/o Late Minirangaiah,
Aged about 38 years, No.33/1, 2nd Cross,
A.V.Bar Road, Muneshwara Layout
Bannerghatta Road, Bangalore 560076.
18. Smt.M.Rajani
W/o Prakash, D/o Late Munirangaiah,
Aged about 32 years, No.64, 5th Cross,
Devarachikkanahalli,
Bannerghatta Road, Bangalore 560076.
19. Smt.M.Poornima,
W/o Manje Gowda, D/o Late Munirangaiah,
Aged about 29 years, No.253, 2nd Floor,
5th Cross, Lakshmipura, Gavipuram
Guttahallli, Bangalore-560019.
20. Smt.R.K.Nandini,
W/o Lrishnappa,D/o Late Munirangaiah,
Aged about 27 years, No.81, 1st Cross Road,
4th 'B' Block, Maistry Palya,
Koramangala, Bangalore-560034.
21. Smt.R.K.Nalini,
W/o Sathyanarayana,
D/o Late Munirangaiah,
Aged about 27 years, No.22/A, 5th Cross,
Dattatreya Extension,
K.G.Nagar, Bangalore-560019.
22. Sri.Munikrishnaiah,
S/o Late Dodda Muniyappa,
since dead by his Lrs.
22(a). Smt. Lakshmamma,
W/o late Munikrishnaiah,
Aged about 60 years.
22(b). Smt.M.Padmavathi,
W/o late Munikrishnaiah,
Aged about 45 years.
5 O.S.No.8837/2011
22(c). Sri.M.Shankara,
S/o Late Munikrishnaiah,
Aged about 43 years,
22(d). Smt.M.Munirathna,
D/o late Munikrishnaiah
Aged about 41 years.
22(e). Sri.M.Dharmaraju,
S/o late Munikrishnaiah
Aged about 35 years.
22(f). Sri.Purushottama,
W/o late Munikrishnaiah
Aged about 60 years.
22(g). Sri.M.Muniraju,
W/o late Munikrishnaiah
Aged about 30 years.
22(h). Smt.Dakshayini,
D/o late Munikrishnaiah
Aged about 24 years.
All are residing at No.38,
TSA-1, K.G.Nagar,
Shanimahatma temple road,
Bangalore-560019.
(By Pleader S.G.A. Adv.)
/VS/
DEFENDANT/S: 1. Smt.Lakshmi Devi
W/o V.Krishnappa,
D/o Late Muni Hemanna,
Since dead by Lrs.
(a). Sri.V.Krishnappa
S/o late Veerappa,
Aged about 57 years,
6 O.S.No.8837/2011
1(b). Sri.K.Srinivasa
S/o V.Krishnappa,
Aged about 35 years,
Both are residing at No.52/1,
Javaraiah garden
3rd block, Thygarajanagara,
Bangalore-560028.
1(c). Smt.Asha Kumari.
W/o Sathesh Chandra
No.13, Krishna Apartment,
Ali Askar road,
Bangalore-560052.
2. Sri.M.Munichandra
S/o Late Muni Hemanna
Aged about 65 years,
Residing at No.42, TSA-1
K.G.Nagar R.K.Mutt,
Bangalore-560019.
3. Sri.M.Mahadeva
S/o Late Muni Hemanna,
Aged about 45 years,
Residing at No.42, TSA-1
K.G.Nagar R.K.Mutt,
Bangalore-560019.
4. Smt.Jayamma,
W/o Late Narayanappa,
D/o Munipapamma,
Since dead by Lrs.
4 (a). Sri. T.N. Gajendra,
S/o late Jayamma and Narayanappa,
Aged about 53 years,
Residing at No. 172, 4th Cross,
B. Basavalingappa layout,
Bilekahalli, Bangalore- 560079 .
7 O.S.No.8837/2011
4 (b). Sri. T.N. Venkatesh,
S/o late, Jayamma
and Narayanappa,
Aged about 51 years,
Residing at No. 29, Sarakki Gate,
Opp. SBI colony,
Kanakapura Main Road,
Bangalore- 560078.
4(c). Smt. N. Gayathri,
D/o late Jayamma and Narayanappa,
Aged about 49 years,
No. 10/66, Bisanahalli Tota,
(Maheshwari Nagar),
B.B. Road, Yehalanka,
Bangalore- 560064.
5. Smt. Jayanthi,
W/o Rangaswamy,
D/o Late M. Ammayyamma,
Aged about 42 years,
No. 76, New No. 30, Gavipura
Guttahalli, 3rd Cross, K.G. Nagar,
Bangalore-560019.
6. Smt. Shobha,
W/o Late Chandru,
D/o Late, M. Ammayyamma,
Since dead by Lrs.
6(a). Master Mitra
S/o late Shoba K.S and Chandra,
Aged about 15 years, residing at
No. 126/10, 1st Main road,
Kempegowda Nagar,
Bangalore-560019.
Minor, represented by his
Guardian and Grand father,
Sri. M. Nagaraj S/o Late Muddaiah,
Aged about 74 years, residing at
No. 126/10, 1st Main road,
Kempegowda Nagar, Bangalore-560019
8 O.S.No.8837/2011
7. Sri. Ananda,
S/o Late M. Ammayyamma,
Aged about 38 years,
No. 76, New No. 30, Gavipura
Guttahalli, 3rd Cross, K.G. Nagar,
Bangalore- 560019.
8. Sri. Dharmaraj,
S/o Late M. Sakamma,
Aged about 48 years,
Residing at No. 847/1442/1B,
Y.P. Narasimhaiah Building,
Nehru Nagar, Yelahanka New Town,
Bangalore- 560064.
9. Sri. M. Shankar @ Munishankara,
S/o Late M. Munirangaiah,
Aged about 45 years,
No. 198/1, Ramakrishna Layout,
Gavipuram Guttahalli,
Bangalore-560019.
10. Sri. Anil Kumar,
S/o Late M. Munirangaiah,
Aged about 36 years,
No. 198/1, Ramakrishna Layout,
Gavipuram Guttahalli,
Bangalore-560019.
11. Smt. Lalithamma,
W/o M. Ramakrishna,
D/o Smt. Sakamma,
Aged about 50 years,
No. 23, 3rd 'A' cross,
Annipura Road, Sudhama Nagar,
Bangalore- 560027.
12. Sri. V. Krishnappa,
S/o Late Veerappa,
Aged about 55 years,
No. 52/1, Javaraiah Garden,
9 O.S.No.8837/2011
3rd block, Thyagarajanagar,
Bangalore-560028.
13. Sri. Shekar,
S/o Govinda Swamy,
Aged about 55 years,
Banana Shop, at No. 38/A,
R.K. Mutt, K.G.Nagar,TSA-1,
Gavipuram Guttahalli,
Shanimahatma Temple Road,
Bangalore- 560019.
14. Sri. Murali,
Ganesh Flower Decoration,
Aged about 50 years,
Shop No. 38/A, R.K. Mutt, K.G. Nagar,
TSA-1, Gavipuram Guttahalli,
Shanimahatma Temple Road,
Bangalore- 560019.
15. Sri. Rana Ram,
S/o Hanumaram,
Aged about 45 years,
Paper Godown, Two shops at No.
38/A, R.K. Mutt, K.G. Nagar,
TSA-1, Gavipuram Guttahalli,
Shanimahatma Temple Road,
Bangalore- 560019.
16. Sri. Vinayaka,
S/o Murugesh,
Aged about 50 years,
Flower shop at No. 38/A
R.K. Mutt, K.G. Nagar, TSA-1,
Gavipuram Guttahalli,
ShanimahatmaTemple Road,
Bangalore- 560019.
17. Sri. M. Shantha Babu,
S/o Prabhakara Guptha,
Aged about 55 years,
Vayunandan Traders,
10 O.S.No.8837/2011
Shop at No. 38/A, R.K. Mutt, K.G.
Nagar, TSA-1, Gavipuram Guttahalli,
Shanimahathma Temple Road,
Bangalore- 560019.
18. Sri. Subramani,
S/o Madaiah,
Aged about 50 years,
Shop/ Garrage at No. 38/A,
R.K.Mutt, K.G. Nagar, TSA-1,
Gavipuram Guttahalli,
Shanimahathma Temple Road,
Bangalore- 560019.
19. Sri. Allabhakash,
S/o Ismail,
Aged about 48 years,
Raj Mutton stall, Shop at No. 38/A,
R.K.Mutt, K.G. Nagar, TSA-1,
Gavipuram Guttahalli,
Shanimahathma Temple Road,
Bangalore- 560019.
20. Sri. Eshwar,
S/o H.G. Srivatsa,
Aged about 65 years,
Tailoring Material Shop,
At No. 24, 80 feet Road,
BSK 1st stage, Srinivasanagar,
Bangalore-560050.
21. Sri. Balu,
S/o Doreswamy,
Aged about 50 years,
Banana Shop at No. 24,
80 feet Road,
BSK 1st stage, Srinivasanagar,
Bangalore-560050.
22. Sri. Vallaram,
S/o Vallaram Diwar,
Aged about 60 years,
11 O.S.No.8837/2011
Two Shops No. 24,
80 feet Road,
BSK 1st stage, Srinivasanagar,
Bangalore-560050.
23. Sri. Himath,
S/o Jirupaji,
(Deleted as per order
dtd.24-05-2012).
24. Mani Thirupathi,
Chowdeshwari Silk House,
Aged about 48 years,
Shop at No. 24, 80 feet Road,
BSK 1st Stage, Srinivasanagar,
Bangalore- 560050.
25. Sri. Raizur Rehaman,
S/o Abdul Azeem,
Aged about 65 years,
Shine Foot Wear,
Shop at No. 24, 80 feet Road,
BSK 1st Stage, Srinivasanagar,
Bangalore- 560050.
26. Sri. Vasanth Kumar,
S/o Thimmappa Poode,
Aged about 65 years,
Condiments Shop,
At No. 266, 80 feet Road,
BSK 1st Stage, Bank Colony,
Srinivasanagar,
Bangalore- 560050.
27. Sri. Kanakaraj,
S/o Kamakshi Chettiyar,
Aged about 50 years,
Shop at No. 266, 80 feet Road,
BSK 1st Stage, Bank Colony,
Srinivasanagar,
Bangalore- 560050.
12 O.S.No.8837/2011
28. Sri. Ramanna,
S/o Veerappa,
Aged about 48 years,
Aishwarya Food,
Two shops at No. 266,
80 feet Road, BSK 1st Stage,
Bank Colony, Srinivasanagar,
Bangalore- 560050.
29. Sri. Lakshman,
Key Maker,
Aged about 40 years,
shops at No. 266,
80 feet Road, BSK 1st Stage,
Bank Colony, Srinivasanagar,
Bangalore- 560050.
30. Sri. Bonaram,
S/o Varadaram,
Aged about 48 years,
Mataji Garments,
Shops at No. 266,
80 feet Road, BSK 1st Stage,
Bank Colony, Srinivasanagar,
Bangalore- 560050.
31. Sri. Mahendra,
S/o Kishore Ram,
Aged about 52 years,
Mahalakshmi Maching Center,
Shop at No. 266,
80 feet Road, BSK 1st Stage,
Bank Colony, Srinivasanagar,
Bangalore- 560050.
32. Sri. Ananda,
S/o Late Ammayyamma,
Aged about 38 years,
Residing in a portion of house,
at 1st floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
13 O.S.No.8837/2011
33. Sri. Ramakrishna,
S/o Mayanna Gowda,
Aged about 45 years,
Residing in a portion of house,
at 2nd floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
34. Sri. Suresh Babu,
Aged about 65 years,
Residing in a portion of,
1st floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
35. Sri. Shankara Narayana Bhat,
S/o Seetharam,
Aged about 60 years,
Residing in a portion of Ground,
floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
36. Sri. Bol Das,
S/o Seetharam Das,
Aged about 50 years,
Residing in a portion of
2nd floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
37. Sri. Jayadeva Adhikari,
Aged about 45 years,
Residing in a portion of Ground,
floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
38. Sri. Raju Major,
Aged about 48 years,
Residing in a portion of Ground,
14 O.S.No.8837/2011
floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
39. Sri. Kumar,
Aged about 50 years,
Residing in a portion of Ground,
floor, No. 76, 3rd cross,
Gavipuram Guttahalli, K.G.Nagar,
Bangalore- 560019.
40. Sri. Rajaneesh Thiwari,
S/o Tribhuvan Thiwari,
Aged about 45 years,
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
41. Sri. Manish Pandey,
S/o Shivanarayan,
Aged about 40 years
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
42. Smt. Sumitra Bai,
W/o Ramalingappa,
Aged about 55 years,
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
43. Sri. Muneer Uddin,
S/o Hussain,
Aged about 45 years,
Residing in a portion of Ground,
15 O.S.No.8837/2011
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
44. Smt. Ganga,
Aged about 40 years,
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
45. Sri. Gayasuddin,
S/o Zaibulla, Aged about 40 years,
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
46. Smt. Raniyamma,
Aged about 55 years
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
47. Sri. Sudhakar
Aged about 50 years.
(Deleted as per order
dtd.24-05-2012).
48. Sri. Nirmal
Aged about 48 years,
(Deleted as per order
dtd.24-05-2012)
49. Sri. Shivaraju,
Aged about 47 years.
Residing in a portion of Ground,
16 O.S.No.8837/2011
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
50. Sri. Arun Pandey,
S/o Seethala Prasad Pandey,
Aged about 46 years,
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
51. Sri. Rohith Thiwari,
S/o T.N. Thiwari,
Aged about 48 years,
Residing in a portion of Ground,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
52. Smt. Anjali,
Aged about 48 years.
Residing in a portion of First,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
53. Sri. Mahadev,
S/o Mara Shetty,
Aged about 50 years,
Residing in a portion of First,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
54. Sri. Shivashankar,
S/o Putta Naik,
17 O.S.No.8837/2011
Aged about 45 years,
Residing in a portion of First,
floor, at No. 41/1,
Shanimahathma Temple Road,
R.K.Mutt Layout, K.G. Nagar,
Bangalore- 560019.
55. Sri. Bhaskar,
Aged about 48 years,
(Deleted as per order
dtd.24-05-2012)
56. Sri. Rakesh Sharma,
S/o Rama Avathar Sharma,
Aged about 43 years,
Residing in a portion of First,
floor, at No. 80,
2nd Cross, Gowrishanankar Temple Road,
K.G. Nagar,Bangalore- 560019.
57. Sri.Anjanappa Major,
Aged about 55 years,
(Deleted as per order
dtd.24-05-2012)
(By Pleader Sri.V.V.,Adv.for D1(a) & D12,
Sri. H.A.C.Adv.for D2 to D4, D8, D11 & D4(c),
Sri.R.P., Adv. for D4(a)& (b), Sri.M.R.K.,Adv.
for D6(a), Sri.P.R.R.,Adv. for D7, Sri.N.M.V.K.,
Adv.for D13 to D22, D24 to D33, D35 to D46,
D49 to D54 & D56, D5, D9 D10 & D34 exparte,
D23, D47, D48, D55 & D57 deleted)
DATE OF INSTITUTION : 15-12-2011.
NATURE OF THE SUIT (Suit on : Suit for
Pronote, Suit for declaration and Partition & Separate
Possession, Suit for injunction, etc.) possession.
18 O.S.No.8837/2011
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE : 06-10-2016.
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED : 04-11-2020.
TOTAL DURATION YEAR/S MONTH/S DAY/S
08 10 19
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
19 O.S.No.8837/2011
JUDGEMENT
1. This is a suit for partition and separate possession of the plaintiffs' share in respect of the suit schedule properties by metes and bounds along with mesne profits and costs of the proceedings.
2. The brief facts of the plaintiffs' case are as follows:
(a). It is the case of the plaintiff that one Muniswamaiah @ Chinnappa was the elder brother of plaintiff No. 22 and maternal uncle of plaintiffs No. 1 to 13 and 23 and defendants No. 4 to 8 and 11 and paternal uncle of plaintiffs No. 14 to 21 and defendant 1 to 3, 9 and 10 as per the genealogical tree furnished along with the plaint. The said Muniswamaiah @ Chinnappa and his wife Smt. Narasamma had no issues and his wife Smt. Narasamma died in the year 1999 and the said Muniswamaiah @ Chinnappa also died intestate on 17.08.2011 at Bangalore City and had left number of immovable properties and also gold, silver, cash and a car bearing Registration No. CAY 3581, along with movables as described in the schedule, which included both the self acquired properties and ancestral properties.
(b). They further contended that in view of the death of Muniswamaiah @ Chinnappa, themselves and defendants 1 to 11 who are his only legal heirs 20 O.S.No.8837/2011 succeeded to the suit schedule properties and are in joint possession and enjoyment of the same and they are entitled to their respective shares in respect of the schedule properties as per the provisions of Hindu Succession Act as they are all Hindus governed by Hindu Mithakshara Law and all of them were in joint possession of the schedule properties. That, within a period of 3 days after the death of said Muniswamaiah @ Chinnappa, the defendant No. 1 and her husband who is the defendant No. 12 have taken the custody of some movables properties such as gold, silver, cash and other movables and all the original documents of title pertaining to the schedule properties, which were kept in the house of Muniswamaiah @ Chinnappa during night time without their knowledge and consent by taking advantage of the situation that all of them are residing at different places in Bangalore City and when some of them approached the defendant No. 1 and 12 and made enquiry with them, the defendants No. 1 and 12, who initially denied later admitted the fact of taking the custody of the said movables for safety purpose when they were about to lodge a complaint to the jurisdictional police.
(c). It is their further case that during the second week of September 2011, they consulted and discussed among themselves and also with the defendants 1 to 12 to have a partition of all the 21 O.S.No.8837/2011 schedule properties left by late Muniswamaiah @ Chinnappa for which the defendants 1 to 12 have not come forward to effect partition and postponed the matter. Later, they came to know that the defendants No. 1 to 12 by colluding with each other with an intention to knock of the schedule properties among themselves and to deprive their legitimate share over the schedule properties, have created a Will and other documents in the name of defendant No. 12. That, late Muniswamaiah @ Chinnappa was aged about 90 years and was not in sound state of bodily health and mind since few years and defendant No. 12 by making use of some old stamp papers purchased by him in the name of Muniswamaiah @ Chinnappa which he had with him, has created and fabricated the said Will subsequent to the death of the said Muniswamaiah @ Chinnappa to knock off the schedule properties. That when they contacted the defendants No 1 and 12 on 6.10.2011 in the morning at about 9 A.M., the defendant No. 12 had informed them for the first time that he had got a power of attorney executed by late Muniswamaiah @ Chinnappa and as such he refused to effect partition of the schedule properties and also showed the said documents to them and as such, they got issued the legal notice on 9.10.2011 calling upon defendants No. 1 to 10 to have, partition of the schedule properties, for which they have got issued an untenable reply dtd. 26.10.2011 refusing to comply 22 O.S.No.8837/2011 the demands. That the alleged Will referred to in the reply notice is a created, forged and fabricated document and the same was not executed by late Muniswamaiah @ Chinnappa ans as such the same is not binding on them.
(d). They further contended that the defendants No. 13 to 57 are the tenants who are in occupation of different portions of the schedule properties and defendant No. 12 by misrepresenting the tenants tried to get the lease agreements executed from the tenants in respect of their respective portions of the schedule properties and as such, they got issued the legal notice dtd. 12.10.2011 to the tenants informing them that they along with defendants No. 1 to 11 are entitled for rents and warned not pay the rents to defendant No. 12 alone, for which the reply notice dtd. 26.10.2011 was issued on behalf of the said tenants raising untenable contentions. That the notices sent to the defendants 13 to 57 were collected by the defendant No.12, who himself instructed the advocate for issuing the reply notice dtd. 26.10.2011, wherein the tenants have declined to pay the rents to them jointly and have asserted that the defendant No. 12 became the land lord. They further contended that schedule properties have to be divided into 7 shares, out of which, the plaintiffs No.1 to 10 are jointly entitled to one share, plaintiffs No.11 to 13 along with defendants No. 5 to 7 are jointly entitled to one share, plaintiff No. 22 is 23 O.S.No.8837/2011 entitled to one share, plaintiffs No. 14 to 21 along with defendants No. 9 and 10 are jointly entitled to one share, the defendants No. 1 to 3 are jointly entitled to one share, defendant No.4 is entitled to one share and defendants No. 8 and 11 are jointly entitled to one share in the suit schedule properties.
(e). They further contended that since defendants No. 13 to 57 are paying monthly rent to the defendant No.12, they have to be directed to deposit the monthly rents before this Court during the pendency of this suit and if not done so, it would become difficult to recover the same from the defendant No. 12 or in the alternative, a receiver has to be appointed for the collection of the rents from them and since the schedule properties are yielding high income, they are also entitled to their respective shares in the said income and since the defendants No. 1 to 11 have not come forward to settle the matter amicably, they have filed this suit for partition and separate possession of their respective shares by metes and bounds and prayed for decreeing the suit.
3. After service of summons, the defendants No. 1 and 12 have appeared through their advocate and the defendant No.12 filed his written statement, which has been adopted by the 1st defendant by filing a memo.
24 O.S.No.8837/2011The brief facts of defence set up by the defendants No.1 and 12 are as follows:
(a). While admitting the relationship of themselves and plaintiffs with Muniswamaiah @ Chinnappa, the fact of death of said Muniswamaiah @ Chinnappa and that the schedule properties belonged to him, they contended that late Muniswamaiah was also being called as Muniswamappa and denied several other contentions made by the plaintiffs and called them to strict proof of the same. While denying that late Muniswamaiah @ Chinnappa died intestate leaving the plaintiffs, defendants No.2 to 10 and themselves as his legal heirs to succeed to the suit schedule properties, they contended that late Muniswamaiah @ Chinnappa had left two Wills dated 18.7.2008 and 20.5.2009 bequeathing all the schedule properties in favour of defendant No. 12 which have come into the effect after the death of late Muniswamaiah @ Chinnappa and based on the said Wills, the Katha of the schedule properties have been transferred in the name of 12th defendant and he is exercising his ownership and right over the schedule properties acquired through the said Wills.
(b). They further contended that all the schedule properties were admittedly the self acquired properties of late Muniswamaiah @ Chinnappa and he was in peaceful, lawful, physical possession and enjoyment of 25 O.S.No.8837/2011 the same as an absolute owner thereof and during the life time of late Muniswamaiah @ Chinnappa, the defendant No. 12 being the husband of 1 st defendant was having good and cordial relationship with late Muniswamaiah @ Chinnappa and he was looking after the welfare of said Muniswamappa in all respects with love and affection and since the 1st defendant happened to be the daughter of elder brother of Muniswamappa named Munihemanna, towards whom the said Muniswamaiah @ Chinnappa had love and affection and since the 12th defendant was looking after the affairs of the schedule properties and also a famous temple situated over the schedule properties, the deceased Muniswamaiah @ Chinnappa had bequeathed the immovable property through Will dated 18.7.2008 and another Will dated 20.05.2009 in respect of the temple and the property attached to the same and both the said Wills were in the custody of one Palaniyappa, a witness of the said Wills, who has handed over the said Wills after the death of said Muniswamappa. That defendant No. 32 (also arrayed as defendant No.7) was very much present in the spot, on the date of death of Muniswamappa and by the time when they along with other family members reached the place of death of Muniswamappa, no movable properties were available and the said properties were illegally taken away by the defendant 26 O.S.No.8837/2011 No. 32 and as such movable properties referred in the plaint schedule are not in their custody.
(c).They further contended that there are about 44 tenants in the schedule properties and that immediately after the death of Muniswamaiah, the defendant No. 32 by misrepresenting to all the tenants has collected the rents from some tenants to the tune of Rs. 6,48,300/- and when the tenants came to know about the Wills, they have stopped paying rents to defendant No. 32 and continued to pay rents to the defendant No. 12 from October 2011 onwards and he is collecting the rents and has received the rental of Rs, 9,33,900/- and has spent a sum of Rs 14,36,000/- towards development and maintenance of Gowri Shankara temple existing on the schedule item No. 6 and 7 of properties by utilizing the entire rentals received from the tenants. That since late Muniswamaiah @ Chinnappa had executed the Wills bequeathing the schedule properties in favour of 12 th defendant, he became the absolute owner of the schedule properties and the plaintiffs have no right to question to validity of the said Wills as they are not entitled for any shares over the suit schedule properties and by further contending that the plaintiffs are not in joint possession of the schedule properties and that the suit is not properly valued and the Court Fees paid is insufficient, they sought for dismissal of the suit.
27 O.S.No.8837/20114. The defendant Nos. 2 to 4, 8 and 11 by filing their joint written statement, have supported the defence put forth by the defendants No. 1 and 12 and contended that late Muniswamaiah @ Chinnappa during his life time has bequeathed the schedule properties in favour of 12 th defendant by way of 2 different Wills and that after his demise, the 12 th defendant is in possession of the schedule properties and is looking after the property for development of Gowri Shankar Temple, which was established by late Muniswamaiah @ Chinnappa during his life time and he is rendering yeomen services to the public and as such plaintiffs are not entitled for any shares over the schedule properties and sought for dismissal of the suit.
5. The defendant No. 28 by filing separate written statement has also supported the defence put forth by the defendants No. 1 and 12 and contended that all the defendants 13 to 57 are all the tenants in occupation of different portions of schedule properties and were paying rents regularly to late Muniswamaiah @ Chinnappa, who used to collect the same through 12th defendant on several occasions. He further contended that he and other tenants very well know about the Wills executed by late Muniswamappa during his life time bequeathing the suit properties in favour of defendant No.12 and therefore, after the 28 O.S.No.8837/2011 death of Muniswamappa, they are paying the rents to the 12th defendant and as such, he sought for dismissal of the suit.
6. The defendants No. 13 to 22, 24 to 27, 29, 30, 32, 33, 35 to 46, 49 to 54 and 56 by filing a memo adopted the written statement filed by the defendant No. 28 and sought for dismissal of the suit.
7. To Prove the case of the plaintiffs, the plaintiff No.9 got examined himself as PW-1 and got marked 51 documents as per P.1 to P.51 and also got examined one more witness as PW.2 and through her got marked the documents as per Ex-P.52 to P.55 and in the cross-examination of DW.1 got marked Ex-P.56 & 56
(a) and closed their side evidence after Cross- examination. To prove his case, the 12 th defendant got examined himself as DW.1 and got marked the documents as per Ex.D.7 to D.63 apart from getting marked Ex.D1 to D6 by way of confrontation to PW.2 and also examined 2 witnesses as DW.2 and DW.3 and closed his side evidence after cross-examination. The defendant No.4(a) got examined himself as D.W. 4 and the 7th defendant got examined himself as D.W. 5 and closed their respective side evidence after cross- examination.
29 O.S.No.8837/20118. Heard the arguments of the counsels for plaintiff, defendant No.12 and Lrs. of defendant No.1 and defendant No.7. The counsel for defendant No.7 has also filed his written arguments. Perused the materials placed on record and also the written arguments submitted by the counsel for defendant No.7.
9. On the basis of the materials placed on record, the following issues have been framed by this Court:
ISSUES
1. Whether the plaintiffs proves that the suit schedule properties are joint family properties and they are in joint possession with defendants No. 1 to 10 ?
2. Whether they further proves that defendants No.1 to 10 refused to give up their share and received the rentals of the suit schedule premises from defendants No. 13 to 57 ?
3. What order or decree?
ADDL.ISSUE:
1. Whether the defendant No.12 proves that he is the absolute owner of the suit schedule properties by virtue of Wills dtd.18-07-2008 and 20-05-2009 executed by late Munishamappa?
10. My findings on the above issues are as follows:
Issue No.1: In the affirmative.30 O.S.No.8837/2011
Issue No.2: In the affirmative.
Addl.Issue No.1: In the negative.
Issue No.3: As per the final order for the following:
REASONS
11. ISSUE NO.1 AND ADDITIONAL ISSUE NO.1:- Since these issues are interlinked with each other and answering one issue in the affirmative will automatically render another issue in the negative, to avoid repetition of facts and appreciation of evidence these two issues are taken together for joint discussion.
12. The relationship of the plaintiffs and defendants No. 1 to 11 with late Muniswamaiah @ Chinnappa who was also called as Muniswamappa is not in dispute. It is not in dispute that late Muniswamaiah @ Chinnappa and his wife Smt.Narasamma died issue-less on 17- 08-2011 and 19-02-1999 as per the death certificates marked as Ex.D. 1 and D.2 respectively and the plaintiffs and defendants No.1 to 11 are his Class-II legal heirs. It is also not in dispute that the 12 th defendant is the husband of 1st defendant who has also been arrayed as defendant No.1(a) along with other legal heirs of deceased 1 st defendant after her death. Admittedly, all the suit schedule mentioned immovable properties belonged to late Muniswamaiah 31 O.S.No.8837/2011 and at the time of his death, katha of all the schedule properties were standing in his name as per Ex.P.8, 9, 13, 14, 21, 22, 43, 44, 50 and 51 katha certificates and extracts except schedule item No.3 property which is still standing in the name of his father Doddamuniyappa as per Ex.P.47 and P.48 katha certificate and extract.
13. It is also admitted that the suit schedule item No.6 was the ancestral property of late Muniswamaiah having acquired the same under Ex.P.4, Partition Deed dtd.19-11-1945 and some of the suit schedule properties were his self acquired and separate properties having acquired them through various sale deeds, Gift Deeds and by way of inheritance from his wife who predeceased him. Documents like Ex.P. 34 sale deed dtd.10-06-1973 pertaining to schedule item No.1 property, Ex.P. 37 sale deed dtd.15-10-1954, pertaining to schedule item No.2 property, Ex.P. 40 sale deed dtd.09-04-2003 pertaining to schedule item No.3 property, Ex.P. 49 sale deed dtd.08-08-1990 pertaining to schedule item No.4 property Ex.P. 23 sale deed dtd.16-05-1994 pertaining to schedule item No.9 property show that suit schedule items No.1 to 4 and 9 properties were purchased by him. Similarly Ex.P. 33 sale deed dtd.10-06-1973, Ex.P. 15 sale deed dtd.02-06-1964 and Ex.P. 18 sale deed dtd.22-05- 32 O.S.No.8837/2011 1972 discloses that schedule items No.5 and 8 properties were purchased by Narasamma wife of late Muniswamaiah and after her death, Muniswamaiah succeeded to the same.
14. Though documents like Ex.P. 1 to P.3 discloses that after purchasing the schedule item No.5 property, late Narasamma executed Gift Deed as per Ex.P. 3 in favour of defendant No.4, defendant No.4 has not set up any separate defence stating that the same is her separate property. Similarly, though Ex.P. 10 Gift Deed dtd.15-07-1980 and Ex.P. 11 and P.12 Encumbrance certificates disclose that schedule item No.7 property was gifted by Doddamuniyappa in favour of Sakamma W/o Venkateshappa, the katha certificate and katha extract as per Ex.P. 13 and P.14 discloses that katha of schedule item No.7 property is standing in the name of late Muniswamaiah.
15. Without looking into the validity of Ex.D.7 and 8 Wills, if the recitals are perused, the same discloses that schedule item No.5 property was again purchased by late Narasamma through sale deed dtd.19-05-1983 and after her death, late Muniswamaiah succeeded and got the katha recorded in his name and schedule item No.7 which was gifted by Doddamuniyamma mother of Muniswamaiah in favour of his sister 33 O.S.No.8837/2011 Sakamma on 15-07-1980 as per Ex.P.10, subsequently, she executed gift deed in favour of Muniswamaiah and his wife on 11-07-1991 and ever since the said date, he was in possession by getting the katha recorded in his name as per Ex.P. 13 and P.14. Ex.D.9 to 63 tax paid receipts also disclose that all the suit schedule immovable properties belonged to late Muniswamaiah. Thus, from the admission of contesting defendants and the above said documents, it is clear that all the suit schedule immovable properties were the absolute properties of late Muniswamaiah.
16. So far as movable properties are concerned, no documents have been placed by either of the parties to show the existence of the movable properties mentioned in the plaint schedule except admitting the existence of cream colour Ambassador Car bearing registration No.CAY 3581 shown as Item No.1 in the movable properties, items No.6 to 8 properties which are a colour TV, Wooden Furnitures and household articles and some silver articles which are being used as property of deity of the temple situated in schedule items No. 3, 6 and 7. That apart, it has been elicited that the said Car, colour TV, Wooden Furnitures and household articles described in schedule movable items No.1 and 6 to 8, have lost their value and are 34 O.S.No.8837/2011 worthless as on this date. So far as silver articles which are being used for the deity of the temple, there are no details regarding the said articles. As such, this Court cannot grant any relief in respect of the said movable properties except making an observation that the articles which are being used for the deity of the temple shall remain with the deity of the temple and whoever may be the succeeding party, they shall not utilize the same for their personal benefits.
17. It is the specific case of the plaintiffs that late Muniswamaiah @ Chinnappa died intestate leaving them and the defendants No.1 to 11 as his Class-II legal heirs to succeed to the suit schedule properties and as such, on his death, all of them along with defendants No.1 to 11 jointly succeeded to the suit schedule properties and the suit schedule properties became their joint family properties and that they are all in joint possession and enjoyment of the same with defendants No.1 to 11. On the other hand, it is the specific defence set up by the defendant No.12 that late Muniswamaiah @ Chinnappa did not die intestate and at the time of his death, he had left two testamentary documents bequeathing the schedule immovable properties in his favour and as such, all the suit schedule properties became his separate properties by virtue of the bequests made under the 35 O.S.No.8837/2011 Wills dtd.18-07-2008 and 20-05-2009 executed by late Muniswamaiah @ Chinnappa and therefore, he denied the contentions of the plaintiffs that suit schedule properties constituted their joint family properties and that they are in joint possession and enjoyment of the same as false and frivolous. It is his further contention that the said fact of execution of the Wills by late Muniswamaiah @ Chinnappa was very much within the knowledge of the plaintiffs who have suppressed the same and have come up with this false suit.
18. To prove the said contentions raised by them, the plaintiffs have examined plaintiff No.9 Jagadish as P.W. 1 and got marked Ex.P. 1 to P.51 through him and also got examined one Suma as P.W. 2 and got marked the documents Ex.P. 52 to P.55 through her. On the other hand, to prove the due execution of the said Wills, the defendant No.12 got examined himself as D.W. 1 and got marked the said Wills dtd.18-07- 2008 and 20-05-2009 set up by him in his defence as per Ex.D. 8 and D.7 respectively and various tax paid receipts pertaining to all the suit schedule immovable properties as per Ex.D. 9 to D.63 and also got examined two attesting witnesses of the said Wills as D.Ws. 2 and 3 and got marked the signatures and LTMs found on the said Wills.
36 O.S.No.8837/201119. Since it is not in dispute that late Muniswamaiah who owned the suit schedule immovable properties died on 17-08-2011 and that the plaintiffs and defendants No.1 to 11 are all his Class-II legal heirs, in the absence of any testamentary succession to the suit schedule immovable properties, naturally the heirs specified in Class-II of the Hindu Succession Act, 1956 among the plaintiffs and defendants No.1 to 11 would be entitled to succeed to the suit schedule immovable properties. However, since the defendant No.12 who is the husband of the deceased 1st defendant and also happened to be one of the legal heirs of deceased 1 st defendant has set up the Wills dtd.18-07-2008 and 20-05-2009 said to have been executed by late Muniswamaiah in his favour, heavy burden lies on him to prove the due execution of the said Wills, in which event naturally none of the plaintiffs and other defendants are entitled for any relief from the hands of this Court and if for any reason, the defendant No.12 fails to prove the due execution of the said Wills, then obviously the heirs specified in Class-II of the Schedule of Hindu Succession Act, 1956 from among the plaintiffs and defendants No.1 to 11 would be entitled to succeed to the schedule properties.
20. The defendant No.12 being the propounder of the said Wills while examining himself as D.W. 1 has stated 37 O.S.No.8837/2011 that late Muniswamaiah had bequeathed the schedule mentioned immovable properties in his favour while he was in sound state of mind and bodily healthy out of love and affection towards him and his wife who is the 1st defendant herein who happened to be the daughter of elder brother of late Muniswamaiah. He has further deposed that he was not aware of the execution of the said Wills till the death of late Muniswamaiah and it is only after his death, D.W. 2 handed over the said Wills to him by stating that late Muniswamaiah had handed over the said Wills to him with a direction to keep the same in his custody and to handover the same to DW.1 after his demise and as such, after D.W. 2 handing over the said Wills, he has made known to all the plaintiffs and other defendants about the execution of the said Wills and also to the tenants who are originally defendants No.13 to 57 (some of the defendants have been deleted subsequently) and thereafter, he started to collect the rents from the tenants and out of the said rents, he is managing the affairs of the temple constructed by late Muniswamaiah over the suit schedule items No.3, 6 and 7 properties.
21. D.W.2 during his examination-in-chief has stated that late Muniswamaiah had requested him to meet him at his house on two occasions i.e. on 18-07-2008 and on 38 O.S.No.8837/2011 20-05-2009 and when he met late Muniswamaiah at his house on both the said occasions, late Muniswamaiah along with advocates and the other attesting witnesses were present and late Muniswamaiah in his presence and the presence of the advocates and other witnesses had informed him that in respect of the suit schedule properties, he is executing the Wills and that he has got prepared the said Wills through the advocates and requested him and the other attesting witnesses named Nanjappa and Subramani to sign as witnesses and thereafter, the advocates read over the contents of the said Wills to late Muniswamaiah and the witnesses including himself and on knowing the contents of the Wills, late Muniswamaiah had signed the Wills and also affixed his LTMs and thereafter, himself and the attesting witnesses named Nanjappa and Subramani have affixed their respective signatures and the advocates have also affixed their signatures as scribes. While further stating that after execution of the Will dtd.18- 07-2008, late Muniswamaiah had kept the same with him, he has further deposed that after the execution of the second Will dtd.20-05-2009, late Muniswamaiah handed over the Wills to him and instructed him to handover the same to defendant No.12 after his demise and as such, the said Wills were in his custody and he handed over the same after the funeral ceremony of late Muniswamaiah and he got identified 39 O.S.No.8837/2011 the Will dtd.20-05-2009 which has been marked as Ex.D. 7 and his signature as Ex.D. 7(a) and also identified the signatures and LTMs of late Muniswamaiah which have been marked as Ex.D. 7(b) to (h) and also identified the signature of another witness named Subramani as Ex.D. 7(i). He also identified Ex.D. 8 Will dtd.18-07-2008 and his signature as per Ex.D. 8(a) and the LTMs and signatures of late Muniswamaiah as per Ex.D. 8(b) to
(h).
22. D.W. 3 named N.Subramani in his examination-in- chief has deposed similarly pertaining to Ex.D. 7 Will only and he has identified his signature found on Ex.D. 7 as per Ex.D. 7(i). Though he has stated that another witness Palaniappan who has examined as D.W. 2 was present on the said date and has affixed his signature on Ex.D. 7 and late Muniswamaiah has affixed his LTMs on Ex.D. 7 along with his signatures and that the advocate has identified the said LTM mark, he has not identified the said signatures and LTMs of late Muniswamaiah and also the signatures of D.W. 2 before this Court. Since he has not identified the signatures and LTM of late Muniswamaiah and also the other attesting witness before the Court, his evidence does not carry much weightage as the same 40 O.S.No.8837/2011 lacks to meet the requirement of Sec.68 of The Indian Evidence Act.
23. It is pertinent to note that the defendant No.4(a) who was initially supporting the case of the defendant No.12 by adopting the written statement filed by the deceased defendant No.4, who also supported the case of the 12th defendant, turned hostile towards 12 th defendant and got examined himself as D.W.4, wherein he has supported the case of the plaintiffs denying the execution of Ex.D.7 and D.8 Wills by late Muniswamaiah in favour of 12th defendant. Similarly, the defendant No.7 who has not even filed any written statement got examined himself as D.W.5 denying the execution of the said Wills and also the various allegations made by defendant No.12 against him to the effect that immediately after the death of late Muniswamaiah, he being his car driver was residing in one of the tenaments which was closely situated to the house of Muniswamaiah and was the first person to discover the death of late Muniswamaiah and that he has taken away all the valuable movables like gold, silver, cash as described in schedule movable items No.2 to 5 before the plaintiffs and other defendants could accumulate near the house of late Muniswamaiah immediately after his death. The said evidences of D.Ws.4 and 5 does not carry much 41 O.S.No.8837/2011 importance except adding more strength in disputing the valid execution of Ex.D.7 and D.8.
24. A perusal of the cross-examination of both D.Ws.2 and 3 show that there are lot of variations and contradictions not only as against each other, but also against to the contents of their own examination-in- chief affidavits. Though D.W. 2 in his examination-in- chief has stated that late Muniswamaiah had requested him to come to his house informing that he is executing the Wills on the very dates of execution of the Wills, in his cross-examination he has stated that late Muniswamaiah had informed him about the said fact about 4-5 days earlier and had requested him to come to his house on the respective dates of execution of Ex.D.7 and D.8, which is the first among the said contradictions.
25. Similarly, in his examination-in-chief, he has stated that draft of the said Wills were already prepared by the advocates as per the instructions of late Muniswamaiah and late Muniswamaiah had acknowledged the same stating that the drafts of the said Wills were prepared by the advocates as per his instructions. But, during the stage of cross- examination, he has stated he along with late Muniswamaiah, advocates and other witnesses went to 42 O.S.No.8837/2011 the office of the Typists which were situated near Uma Theater and thereafter the advocates got the said Wills typed as per the instructions of late Muniswamaiah in his presence and later Muniswamaiah executed the said Wills, which is the second among the said contradictions. Similarly, in his cross-examination, he has stated that Ex.D. 8 Will was executed at about 1.30 P.M. in the afternoon and Ex.D. 7 Will was executed at about 6 P.M., whereas D.W. 3 has stated that Ex.D. 7 Will was executed at 4 to 4.30 P.M. contrary to the evidence of D.W.2. At one breath during his examination-in-chief D.W.3 has deposed that late Muniswamaiah had requested him to come to his home on the very day of execution of Ex.D. 7 Will and that he had been to the house of late Muniswamaiah by 3.15 P.M. and by the time, he reached the house of late Muniswamaiah, the draft of the said Will was already prepared and the Will was executed by late Muniswamaiah at his home itself.
26. But, during the course of his cross-examination, he has deposed quite contrary to his own examination-in- chief and also contrary to the depositions of D.W.2 stating that late Muniswamaiah had informed him two days earlier about the execution of Ex.D. 7 and had requested him to be the attesting witness to the same and by the time he reached the temple, the drafts of 43 O.S.No.8837/2011 Ex.D. 7 was already prepared and that he had not been to the office of the Typist situated at Uma Theater and the draft of Ex.D.7 was not prepared before him, which is quite contrary to the depositions of D.W.2 and his own examination-in-chief. That apart, as stated above, though he has deposed everything about the execution of the Will in his examination-in-chief affidavit, he has not identified the signatures and the LTMs of late Muniswamaiah on Ex.D. 7 nor has identified the signatures of D.W. 2 or the scribe, except identifying his own signature at Ex.D. 7(i) and went to the extent of deposing that he has not instructed the counsel to prepare his examination-in-chief affidavit.
27. The above said evidences of D.Ws.1 to 3 and perusal of Ex.D.7 and D.8 does not inspire the confidence of this Court to come to the conclusion that late Muniswamaiah had duly executed Ex.D. 7 and D.8 Wills on the respective dates and that they have witnessed the due execution of the same as attesting witnesses as they failed to prove the due execution of the said Wills by late Muniswamaiah and to clear the suspicious circumstances surrounding the due execution of the said Wills. The above said contradictory evidences of D.Ws.2 and 3 and the recitals found in Ex.D.7 and D.8 also creates a doubt 44 O.S.No.8837/2011 in the mind of this Court that the draft Wills were prepared as per the instructions of late Muniswamaiah and that he had validly executed the said Wills. The signatures and the LTMs alleged to be that of late Muniswamaiah found on Ex.D. 7 and D.8, prima-facie goes to show that they were affixed on a single day by using the same pen and same inkpad and were not affixed on the alleged dates of execution of Ex.D.7 and D.8, which creates a doubt in the mind of this Court about the due execution of the said Wills by late Muniswamaiah. The same also creates a doubt in the mind of this Court regarding the genuineness of the signatures of late Muniswamaiah found on Ex.D. 7 and D.8 as there are lot of variations in the signatures found on Ex.D. 7 and D.8 with the admitted signatures of late Muniswamaiah found on Ex.P.56 which is marked as Ex.P. 56(a) and the specimen signature card found attached with Ex.P.56. The use of the same inkpad and the same pen for execution of both Ex.D. 7 and D.8 coupled with the contradictory evidences of D.Ws.2 and 3 creates a doubt in the mind of this Court about the due execution of Ex.D. 7 and D.8 by late Muniswamaiah.
28. That apart, the conduct of defendant No.12 in submitting an application before the Telephone Exchange Authority to transfer the telephone 45 O.S.No.8837/2011 connection from the name of deceased Muniswamaiah to his name by affixing the signature of late Muniswamaiah on the application dtd. 14-09-2011 filed for transfer of telephone which is marked as Ex.P. 52 after the death of late Muniswamaiah by forging the signature of late Muniswamaiah and also suppressing the fact of death of late Muniswamaiah and his attempt to get the said telephone transferred to his name also creates a doubt in the mind of this Court about the genuineness of the Ex.D. 7 and D.8 Wills. A perusal of the specimen signature card attached with Ex.P.56 found in the documents summoned by the plaintiffs from Telephone Exchange Department, wherein the specimen signatures of late Muniswamaiah are found, clearly demonstrates that there is a lot of variations in the signatures of late Muniswamaiah both in Ex.D. 7 and D.8 with the admitted signatures found in the specimen signature card and Ex. P.56.
29. According to the evidence of D.W. 2, he had handed over the Ex.D. 7 and D.8 Wills to defendant No.12 after attending the funeral ceremony of late Muniswamaiah. If really the Wills were in existence and the same have been handed over by D.W. 2 to defendant No.12 after attending the funeral ceremony of late Muniswamaiah as stated by him, definitely, 46 O.S.No.8837/2011 there was no reason for defendant No.12 in not producing the same to Telephone Exchange Department at the time of submitting Ex.P. 52 application for transfer of telephone from the name of deceased Muniswamaiah to his name which was admittedly filed on 14-09-2011 almost nearing to a month from the date of death of late Muniswamaiah. He has not at all disclosed the fact of death of late Muniswamaiah while getting the telephone transferred to his name as could be seen from the very proceedings took place before the BSNL office, which are marked as Ex.P. 52 to P.56, wherein it is found that defendant No.12 had filed an application for transfer of telephone from the name of deceased Muniswamaiah to his name by forging the signature of late Muniswamaiah on Ex.P. 52 and the Manager of BSNL Ltd. has informed him that his application for transfer of telephone to his name has been rejected and the work order already issued for transfer of telephone to his name has been canceled as per Ex.P.
55.
30. If really Ex.D. 7 and D.8 were in existence, the defendant No.12 could have disclosed the death of late Muniswamaiah and by submitting the said copies of the Wills he could have sought for transfer of telephone from the name of late Muniswamaiah to his 47 O.S.No.8837/2011 name on the basis of the said Wills, which he has not done so. The said fact also discloses that as on the said date, Ex.D. 7 and D.8 were either not in existence or were not within the knowledge of the 12 th defendant. But, the evidence of D.W. 2 rules out the second option of defendant No.12 not having the knowledge about the existence of Ex.D. 7 and D.8 Wills.
31. Another circumstance which creates a doubt in the mind of this Court about the genuineness of Ex.D. 7 and D.8 Wills is that when the plaintiffs got issued legal notices to defendants No.1 to 10 as per Ex.P. 27 and to the tenants who are defendants No.13 to 57 as per Ex.P. 30, which were dtd.09-10-2011 and 12-10- 2011, the defendants No.1 to 10 and 13 to 57 have issued replies as per Ex.P. 29 and P.32, wherein similar defence has been set up by them stating that late Muniswamaiah had left a testament behind him and that he did not die intestate and that he had disposed off all the schedule immovable properties by executing a Will during his life time in favour of husband of 1st defendant who is the 12th defendant herein. But, no where in the said replies marked as Ex.P. 29 and P.32, which are dtd.28-10-2011 and 26- 10-2011 respectively, it has been specifically mentioned about the existence of Ex.D. 7 and D.8 48 O.S.No.8837/2011 Wills by specifically disclosing the dates of the respective Wills. If really Ex.D. 7 and D.8 were in existence and had been validly executed by late Muniswamaiah as rightly argued by the counsel for the plaintiffs, there was no impediment for the defendants No.1 to 10 and more particularly defendant No.12 being the husband of defendant No.1 to disclose about the execution of Ex.D. 7 and D.8 in his favour by mentioning the dates of the said Wills and to furnish the copies of the said Wills to the plaintiffs along with the said reply notices.
32. That apart, if really, there were two Wills in existence as per Ex.D. 7 and D.8, then why the defendant No.12 has not disclosed about the said two Wills and referred only about a single Will in the said reply notices. During the course of his cross-examination, the 12 th defendant herein has stated that he had produced both the said Wills to his advocate at the time of issuing the said reply notice as per Ex.P. 29 and if really he had shown the said Wills to his advocate, there was no reason as to why his advocate has not mentioned about the existence of the said two Wills along with their respective dates. So far as the proceedings took place before the BSNL Telephone Exchange authorities, the explanation offered by D.W. 1 that at the time of submitting Ex.P. 52 application, 49 O.S.No.8837/2011 the place meant for signature of late Muniswamaiah was left unfilled and that the plaintiffs might have forged the said signature by colluding with the officials of BSNL cannot be accepted in view of the objections filed by the plaintiffs before the said department along with the copy of the death certificate of late Muniswamaiah which clearly discloses that it is for the first time, the plaintiffs have brought to the notice of the telephone department regarding the death of Muniswamaiah and that there was no chance of late Muniswamaiah affixing his signature as consenting witness to transfer the telephone connection from his name to the name of 12th defendant. Contradictory evidence of D.W. 1 that while issuing the reply notice, he had not been to the office of his advocate at one breath and that he had himself instructed him to reply and that he had produced the Wills to both his advocate and also the tenants to cause the said reply notices also creates doubt about the genuineness of the said Ex.D. 7 and D.8 Wills.
33. As already stated both the said Wills seems to have been executed on a same day by using the same pen and inkpad and LTMs of late Muniswamaiah have been identified by the same person by using the same pen both on Ex.D. 7 and D.8, which is apparent on the face of record. A perusal of the recitals found in Ex.D. 50 O.S.No.8837/2011 7 and D.8 also creates a doubt in the mind of this Court regarding the due execution of the same by late Muniswamaiah, wherein a detailed description of the schedule properties including the nature of their acquisitions with the past history by referring to the katha and PID numbers, date of acquisitions of the schedule properties including the registration numbers, etc., have been made, which could only be done by referring to the title and katha documents keeping all of them side by side at the time of giving instructions to prepare the draft Wills. The manner in which the said Wills have been executed by furnishing such a detailed descriptions of the properties and the nature of acquisitions of the said properties which runs to 7 pages each also creates a doubt in the mind of this Court as to whether the Wills appear to be on the whole improbable, unnatural and unfair instruments apart from the mental capacity of late Muniswamaiah as held by the Hon'ble Supreme Court of India in a landmark judgment reported in AIR 1959 SC 443 in the matter between H. Venkatachala Iyengar vs B. N. Thimmajamma & Others, wherein it has been held as under:
"It would, therefore, be necessary at this stage to decide whether an execution of the will in the present case is surrounded by any suspicious circumstances. Does the will appear to be on the whole an improbable, unnatural and unfair instrument as held by the High Court? That is the first question which falls to be considered. We have already indicated that the preamble to the will contains many argumentative recitals. Indeed it would not be unjust to say that the preamble purports to meet by anticipation the 51 O.S.No.8837/2011 main objections which were likely to be raised to the competence of Lakshmamma to make a will in regard to the properties covered by it. The preamble in great detail makes out a case that the properties received by the testatrix and her husband under the gift deed (Ex. D) devolved upon her by survivorship after her husband's death, a plea which has not been accepted even by the trial court. It also seeks to prove that the subsequent purchases made by her husband were in law the joint acquisitions of her husband and herself, a point on which the two courts below have differed. It sets out in detail the theory that the son of the testatrix has lost his right, title and interest in the properties which devolved on him after his father's death because he had alienated more than his share in the said properties during his lifetime; and it even suggests that during his illness and to help him to build a house in Mysore the testatrix had advanced him money from her separate funds, pleas which have not been accepted by either court below. It seems to us that the elaborate and well considered recitals which have been deliberately introduced in the preamble cannot possibly be the result of corresponding instructions given by the testatrix to the appellant for preparing the draft of her will. In the context these recitals sound artificial and unnatural and some of them at any rate are untrue. The draftsman of the will has tried to be overwise' and that itself is a very serious infirmity in the appellant's case".
34. That apart, as rightly argued by the counsels for the plaintiffs and defendant No.7, several other suspicious circumstances surrounding the said Wills remained unexplained by defendant No.12 like, why the deceased Muniswamaiah had bequeathed the entire suit schedule properties in favour of 12th defendant only who was far related than the plaintiffs and defendants No.1 to 10, why two Wills were executed by late Muniswamaiah if really he had intention to bequeath all the properties in favour of defendant No.12 alone, why the said Wills have not been produced before any authorities at the earliest point of time, more particularly before the BSNL authorities when he had applied for transfer of telephone, why 52 O.S.No.8837/2011 the said Wills have not seen the light of the day at the earliest, why the dates of the said Wills have not been mentioned in the reply notices, why the said Wills have not been produced at the time of filing the written statement itself, why the said Wills have not been registered in spite of the advocates scribing the same though it is not necessary to register the said Wills, why the said Wills have not been confronted to the P.Ws. during the course of their cross- examinations and why there are contradictions in the evidences of D.Ws. 2 and 3 the alleged attesting witnesses who have deposed differently regarding the place, time, preparation of the drafts and execution of the Wills.
35. Though the counsel for the defendant No.12 during the course of his arguments tried to argue that the Wills are genuine and since the plaintiffs have contended that the said Wills are fraudulent and forged, the burden of proving the forgery and fraud is on the plaintiffs and issue need to be framed in this regard and that the plaintiffs have failed to prove the said facts and mere minor discrepancies in depositions of D.Ws. 2 and 3 cannot be viewed seriously to discredit their evidences in view of the fact of witnesses being examined after long gap and that P.W. 1 during the stage of his cross-examination 53 O.S.No.8837/2011 has specifically admitted that late Muniswamaiah was looking after all his properties for himself which discloses that he was hale and healthy and was maintaining good health and relied on various decisions as detailed below:
1) AIR 1996 Kerala 64 in the matter between P. Subramanian and Others V/s Ramachandran and Others, wherein it has been held as follows:
(B) Succession Act (39 of 1925) , S.63-- Evidence Act (1 of 1872) , S.3-- Will - Evidence of witness - Credibility -
Appreciation of - Witness committing mistakes on certain irrelevant points - It is no ground for, complete rejection of evidence.
2) (2003) 8 Supreme Court Cases 537 in the matter between Ramabai Padmakarpatil (Dead) V/s Rukminibai Vishnu Vekhande and Others, wherein it has been held as under:
A. Will- Genuineness - Suspicious circumstances - Must be removed by propounder - Mere fact that the entire property was given to only one of the natural heirs, a widowed daughter, to the exclusion of others, is not a suspicious circumstance when it was done with a view to make provision for the widow who had been left destitute at an early age-In absence of any evidence showing that testator's mental faculty was impaired and in view of the fact that she personally went to the office of Sub-Registrar for registration of the Will and she died long after (45 months) execution of the Will, mere facts that the testator was very old, was hard of hearing and was unable to walk would not throw any doubt on genuineness of the Will.
B. Succession Act, 1925 - S.63 - If one of the attesting witnesses is examined and no infirmity found in his testimony, non-examination of the person who had typed the Will or the advocate who was present at the time of preparation or registration of the Will, cannot be a ground to discard the Will- Evidence Act, 1872, S.68 proviso.
3) AIR 2004 Madras 291 in the matter between Amalorpava Mary and another V/s Kulandai Ammal and Others, wherein it has been held as follows:
Succession Act (39 of 1925), - S.63 - Execution of Will - Proof- Evidence of one of attesting witnesses that other witnesses was present and attested same in presence of 54 O.S.No.8837/2011 testators-sufficient for proving Will in question and same cannot be held to be not proved merely on ground that other witness was not examined.
4) AIR 2004 Rajasthan 311 in the matter between Jai Raj Singh and another V/s Shanti Kishan Singh and another, wherein it has been held as follows:
Succession Act (39 of 1925), - S.63 - Will - Proof- All circumstances alleged to be suspicious by appellants- Taken individually and collectively do not create any doubt regarding genuineness of Will-Statement by appellant, son of executor, challenging Will-showing that his mother was not suffering from any ailment except that of blood pressure- Thus, plea by appellants that executor was not mentally and physically fit to execute Will- not tenable-execution of Will, thus, held to be proved.
5) AIR 2004 Madras 403 in the matter between Senthikumar and another V/s Dhandapani and Others,wherein it has been held as follows:
Succession Act (39 of 1925), - S.63 - Will - Execution- Proof- attesting witnesses examined after 4 years of execution of Will -it cannot be expected that he would say or depose all details about Will accurately - Attestator stating that Will was signed in his presence- Testator shown to be hale and healthy and in sound and disposing state of mind-Will can be said to be validly executed.
6) AIR 2008 Supreme Court 300 in the matter between Savithri and Others V/s Karthyayani Amma and Others, wherein it has been held as follows:
Succession Act (39 of 1925), - S.63 - Evidence Act (1 of 1872), S.101, S.102, S.103, S.104 -Will -execution-
suspicious circumstances -Plea of coercion-Burden to prove is on party alleging coercion.
7) 2016 (2)-KCCR 1060 in the matter between N. Sriram and Others V/s Smt. Ananthalakshmi Sathyavathi and Another, wherein it has been held as follows:
Succession Act, 1925 - S.63-Will- Execution of one attesting witness mentioning place of execution as one office-another stating it to be another office-both found to be adjacent to each other-cannot be termed as contradictory-will not invalid only for non-examination of scribe-testator bequeathing property in favour of his grandchildren because of his son's ill-health-not unnatural-Will not shrouded by suspicious circumstances.55 O.S.No.8837/2011
8) 2016 (5) KCCR 1541 in the matter between Mrs. Benedicta Monteiro and Others V/s Thomas Monterio and Others, wherein it has been held as follows:
Succession Act, 1925 - S.63- Execution of Will- suspicious circumstances-it is for propounder to dispel.
Held: The mode of proving the Will would not ordinarily differ from any other document, except requiring attestation prescribed under Sec.63 of the Indian Succession Act. The suspicion that may be raised would be the contents of the Will, the testator's mind, the disposition, the unfair conduct, etc. Therefore, these are the suspicions that the propounder has to dispel, if not, the Will would not be accepted and if the suspicion is dispelled, the same would stand accepted by the Court.
9) AIR 2018 Supreme Court 1264 in the matter between H.V. Nirmala and Another V/s R. Sharmila and Another, wherein it has been held as follows:
Succession Act, (39 of 1925) - S.63- Will- Execution
-Proof- plaintiff filed suit for declaration that compromise decree is not binding on her and that she is lawful owner of suit property on basis of earlier Will- plaintiff adducing her own evidence and by examining one attesting witness , proved Will executed in her favour- No reference of revocation of earlier Will in later Will-compromise decree passed in suit for partition based on later Will executed in favour of defendants -not binding on plaintiff as she was not party to it-order decreeing suit in favour of plaintiff, proper. Evidence Act (1 of 1872), S.68.
10) AIR 2015 Supreme Court 2769 in the matter between Smt. Shakuntala Bai and Others V/s Mahaveer Prasad, wherein it has been held as follows:
Succession Act (39 of 1925), S.63 - Evidence Act (1 of 1872), S.68 -Will-Execution and attestation of -proof-
respondent taken in adoption by testator- property referred to in will bequeathed to respondent with responsibility of looking after testator's wife and daughter during their life time -Will contained signatures of testator which had been endorsed by handwriting expert- Will mentioned as well, that testator had written and verified document in presence of and under the signatures of two witnesses - These two witnesses have been able to satisfactorily prove the execution of the Will and the attestation-wife and daughter of testator supported respondent in his initiatives to obtain succession certificate-Will held to be genuine and not surrounded by suspicious circumstances.
56 O.S.No.8837/201111) AIR 1988 Delhi 73 in the matter between Ram Lal V/s Hari Kishan, wherein it has been held as follows:
Succession Act (39 of 1925), S.63 - Attestation of Will- proof-mode of attesting witnesses not cross-examined on question of attestation-It is not necessary for attesting witnesses to depose that he signed as witness in presence of testator-Held, will was duly executed.
12) AIR 1997 Himachal Pradesh 43 in the matter between Shakuntala Devi V/s Savitri Devi and Others, wherein it has been held as follows:
(B) Succession Act (39 of 1925), S.63 - Will Execution-
suspicious circumstances- Attesting witnesses not knowing contents of will- not a suspicious circumstance- attesting witness stating as to attestation being made in presence of testator- Failure on part of witnesses to give contents of Will- Not a suspicious circumstance.
(c) Succession Act (39 of 1925), S.63 --Will-Not a suspicious circumstance-contradiction in statements of witnesses in regard to date of death of testator-witnesses not related to testator-They were rustic villagers deposing after six years of execution of Will-Contradiction will not be a suspicious circumstance against validity of Will- witnesses cannot be expected to remember minute details of facts.
(D)Succession Act (39 of 1925), S.63 -Will-Execution- Suspicious circumstances-Will produced nine months after death of testator for getting mutation on its basis- Absence of evidence to show that legatees failed to produce will earlier in spite of opportunity to do so- Period of nine months not long enough to cast shadow on genuineness of Will.
13) AIR 1999 Madras 149 : A. Ramesh V/s A. Manohar Prasad and Others, wherein it has been held as follows:
(A) Succession Act (39 of 1925), S.218 - Letters of Administration -Grant of -Conscious execution of will by testator-proved-failure of defendants to prove that testator was not in disposing state of mind and health on relevant date- Defendants also failed to prove suspicious circumstances- Will not executed fraudulently nor fabricated by attesting witnesses- plaintiff would be entitled to letters of administration.
(B) Succession Act (39 of 1925), S.63 -Will-proof-
suspicious circumstances- valid execution proved- Will cannot be said to be invalid merely on ground that disposition was not made in favour of anyone or a legal heirs of testator.
57 O.S.No.8837/201114) AIR NOC 235 (KER) 2006 (4) (KER) 539 : V. Ramkumar. J. Elsy and Others V/s V.K. Raju and Others, wherein it has been held as follows:
(B)Succession Act (39 of 1925), S.63 - Will- Execution of -
merely because the Will in question is an unregistered Will and there is an uneven distribution of property under the Will, that cannot be treated as a suspicious circumstance.
36. The said arguments canvassed by the counsel for the defendant No.12 cannot be accepted in view of the said suspicious circumstances surrounding the said Wills remaining unanswered. The decisions relied by the counsel for the defendant No.12 are not applicable to the case on hand as the facts and circumstances of the said decisions and facts and circumstances of the present case are entirely different. However, keeping the principles laid down in the said decisions if the said Wills marked as Ex.D. 7 and D.8 and the evidences of D.Ws.1 to 3 are carefully scrutinized, definitely one can come to the conclusion that the said Wills are not genuine Wills and not executed by late Muniswamaiah. Even presuming for the sake of arguments that the said Wills were executed by late Muniswamaiah, the evidences of D.Ws.2 and 3 does not inspire the confidence of this Court to hold that late Muniswamaiah had voluntarily out of his free Will and wish executed the said Wills in favour of defendant No.12 bequeathing all the suit schedule immovable properties in his favour. Similarly, though there are no sufficient evidence led in by both the parties regarding the mental stability and physical fitness of late 58 O.S.No.8837/2011 Muniswamaiah, having due regard to the age of late Muniswamaiah and his ailments which are admitted by D.W. 1 that he had been admitted to Sagar Appollo hospital a year before his death and that he was suffering from old age ailments like B.P., sugar, Asthma and kidney problems and used to take his assistance in maintaining temple administration and collection of rents from the tenants, this Court is of the opinion that the defendant No.12 has failed to prove the mental stableness of late Muniswamaiah, particularly when he was standing in fiduciary relationship with late Muniswamaiah dominating the will of said Muniswamaiah. Hence, viewed from any angle, this Court is of the opinion that the defendant No.12 has thoroughly failed to prove that he has become the absolute owner of the suit schedule properties by virtue of the Wills dtd.18-07-2008 and 20-05-2009 said to have been executed by late Muniswamaiah in view of his failure to prove the due execution of the said Wills. Since the defendant No.12 has failed to prove the due execution of the said Wills, naturally the suit schedule properties left behind by late Muniswamaiah became the joint family properties of plaintiffs and defendants No.1 to 11 and the same are in their joint possession having succeeded to intestate succession as Class-II legal heirs. Hence, there is no hesitation for this Court to answer additional issue No.1 in the negative and issue No.1 in 59 O.S.No.8837/2011 the affirmative. Accordingly, I answer additional issue No.1 in the negative and issue No.1 in the affirmative.
37. ISSUE NO.2:- The plaintiffs have specifically contended that in spite of they demanding the defendants No.1 to 10 to share the schedule properties and the rents received from defendants No.13 to 57, the defendants have not effected partition and refused to give their share both in the schedule properties and the rents received from the defendants No.13 to 57. The said fact has not even been denied by any of the defendants. The way in which the defendant No.1 and 12 have set up the Wills and defended the above case itself goes to show that there was a refusal by the defendants to meet the demands made by the plaintiffs. That apart, Ex.P. 27 and P.30 legal notices issued by the plaintiffs and Ex.P. 29 and 32 reply notices issued by the defendants also prove that the defendants have refused to give the share to the plaintiffs both in the schedule properties and also in the income received in the form of rentals from defendants No.13 to 57. Therefore, there is no hesitation for this Court to answer issue No.2 in the affirmative. Accordingly, I answer issue No.2 in the affirmative.
60 O.S.No.8837/201138. ISSUE NO.3:- Since the defendant No.12 has thoroughly failed to prove the due execution of the Wills said to have been executed by late Muniswamaiah and since the plaintiffs and defendants No.1 to 11 are undoubtedly his Class-II legal heirs, the heir among them who has got preferential right as specified in schedule of Hindu Succession Act succeeds to the suit schedule immovable properties.
39. Since the plaintiffs have not properly described the relationship of late Muniswamaiah with themselves and defendants No.1 to 11 in the plaint, it is just and necessary to have a look at the family genealogical tree produced along with the plaint which forms part and parcel of the plaint and has not been denied by the defendants. As per the said family genealogical tree late Doddamuniyappa and late Muniyamma who happened to be the father and mother of late Muniswamaiah had 8 children including late Muniswamaiah @ Chinnappa and among them 4 were sons and 4 were daughters. The sons of the said Doddamuniyappa were (1) M. Muni Hemanna who happened to be the father of defendants No 1 to 3, (2) M. Muniswamaiah who had no issues, in respect of whose properties the present suit is filed, (3) the plaintiff No.22 named M.Munikrishnaiah who also died during pendency of the suit leaving his Lrs, who are plaintiffs No. 22 (a) to (h) and (4) M. Munirangaiah who 61 O.S.No.8837/2011 happened to be the father of plaintiffs No. 14 to 21 and defendants No. 9 and 10. The daughters of the said Doddamuniyappa were (1) M. Munipapamma who happened to be the mother of defendant No.4, (2) M.Ramakka, who happened to be the mother of plaintiffs No.1 to 10, (3) M. Ammayamma who happened to be the mother of plaintiffs No. 11 to 13 and defendants No. 5 to 7 and (4) M. Sakamma who happened to be the mother of defendants No. 8 and 11.
40. Hence from the above genealogical tree it is clear that late Muniswamaiah @ Chinnappa was the elder brother of 22nd plaintiff and Paternal and maternal uncle to the rest of the plaintiffs and defendants No. 1 to 11 and the 22nd plaintiff was the only surviving brother of late Muniswamaiah as on the date of death of late Muniswamaiah and all other brothers and sisters of late Muniswamaiah had predeceased him leaving their legal heirs as narrated above.
41. As per the provisions of Secs. 8 and 9 of Hindu Succession Act, 1956, in the absence of Class-I legal heirs of late Muniswamaiah, those in the first entry in Class-II heirs shall be preferred to those in the second entry and those in the second entry shall be preferred to third entry and so on in the order of succession. The plaintiff No.22 who was the sole surviving brother of 62 O.S.No.8837/2011 late Muniswamaiah fell within the entry No.2 of Class- II legal heirs, whereas the plaintiffs No.1 to 21 and defendants No.1 to 11 being the children of deceased brothers and sisters of late Muniswamaiah fell within the entry No.4. As such, the deceased plaintiff No.22 who was alive as on the date of death of Muniswamaiah alone succeeded to all the schedule immovable properties in preference and exclusion of other plaintiffs and defendants No.1 to 11 and none of the plaintiffs No.1 to 21 and defendants No.1 to 11 have succeeded to the schedule properties and as such, none of them are entitled for any relief from the hands of this Court except the deceased plaintiff No.22.
42. Since the 22nd plaintiff died during the pendency of this suit and his Lrs. are already brought on record, who are his Class-I legal heirs, they all jointly succeeded to the estate of deceased 22nd plaintiff including the suit schedule immovable properties, which got vested with the deceased plaintiff No.22 immediately after the death of late Muniswamaiah. As such, the Lrs. of deceased plaintiff No.22 alone are entitled to succeed to the entire suit schedule immovable properties and since none of the plaintiffs No.1 to 21 and defendants No.1 to 11 have succeeded to the suit schedule 63 O.S.No.8837/2011 properties, they are not entitled for any share in the suit schedule immovable properties.
43. Since the Lrs. of deceased plaintiff No.22 have not sought for partition of the schedule properties among themselves, there is no need for this Court to grant the relief of partition and instead, they are entitled for a moulded relief of declaration as per the provisions of Order VII Rule 7 of C.P.C. to the effect that they being the Lrs. of deceased 22nd plaintiff, who was the only legal heir of late Muniswamaiah, have succeeded to the entire suit schedule immovable properties left by late Muniswamaiah and that they have become the joint owners of the suit schedule immovable properties and shall be put in exclusive possession of the said properties, who shall hold the same as tenants in common.
44. So far as the relief of mesne profits claimed by the plaintiffs is concerned, since it is an admitted fact that some of the schedule properties were leased to the defendants No.13 to 57 and were yielding income in the form of rents to the tune of Rs. 1,04,000/- per month and since it is the contention of the 12 th defendant that the temple was being managed out of the said rental income, the defendant No.12 is under legal obligation to furnish the accounts in respect of 64 O.S.No.8837/2011 the said income generated from the schedule properties and expenditures incurred in respect of the maintenance of the temple situated in schedule items No.3, 6 and 7 to the Lrs. of deceased plaintiff No.22 from the date of suit till exclusive possession of the schedule immovable properties are handed over to them. Hence, with these observations, I proceed to pass the following:
ORDER The suit is hereby decreed in part.
The plaintiff No.22 since dead, his Lrs. are hereby declared that they have succeeded to the entire suit schedule immovable properties left by late Muniswamaiah and that they have become the joint owners of the suit schedule immovable properties as tenants in common.
The claim of plaintiffs No.1 to 21 for the relief of partition and separate possession of their respective shares over the suit schedule immovable properties is hereby dismissed.
The defendant No.12 is hereby directed to put the legal heirs of plaintiff No.22 in exclusive possession of the suit schedule immovable properties and shall also furnish the accounts in respect of the income generated from the schedule mentioned immovable properties from the date of suit till they are put in possession of the same and in case of his failure to do so, there shall be an enquiry into the mesne profits.
The suit against defendants No.13 to 57 is hereby dismissed.65 O.S.No.8837/2011
In view of the facts and circumstances of the case, both the parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 4 th DAY OF NOVEMBER 2020).
(MAANU K.S.), XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.66 O.S.No.8837/2011
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 Sri.S. Jagadish P.W.2 Smt.Suma
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 Sri.V.Krishnappa. D.W.2 Sri.M.K.R.Palaniappan. D.W.3 Sri.N.Subramani. D.W.4 Sri.Gajendra T.N. D.W.5 Sri.K.S.Ananda.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 & 2 Encumbrance certificates. Ex.P. 3 Copy of Gift Deed dated 01.07.76 Ex.P.3(a) Typed Copy. Ex.P.4 Copy of Partition Deed dated 19.11.1945. Ex.P.4(a) Typed copy. Ex.P.5 to 7 Encumbrance certificates Ex.P.8 Katha Extract. Ex.P.9 Katha Certificate. Ex.P.10 Copy of Gift Deed dated 15.07.80. Ex.P.10(a) Typed Copy.
Ex.P.11 & 12 Encumbrance certificates.
Ex.P.13 Katha Extract. Ex.P.14 Katha Certificate. Ex.P.15 Copy of Sale Deed dated 2.4.1964. Ex.P.15(a) Typed Copy.
Ex.P.16 & 17 Encumbrance certificates. Ex.P.18 Copy of Sale Deed dated 22.5.1972.
Ex.P.18(a) Typed copy.
Ex.P.19 & 20 Encumbrance certificates.
Ex.P.21 Katha Extract. Ex.P.22 Katha Certificate. Ex.P. 23 Copy of Sale Deed dated 14.05.94. Ex.P.23(a) Typed Copy.
Ex.P.24 & 25 Encumbrance certificates 67 O.S.No.8837/2011 Ex.P.26 Death Certificate.
Ex.P.27 Legal Notice.
Ex.P.28 10 Postal Receipts.
Ex.P.29 Reply dated 28.10.2011.
Ex.P.30 Legal Notice dated 12.10.2011.
Ex.P.31 45 Postal receipts.
Ex.P.32 Reply dated 26.10.2011.
Ex.P.33 Copy of Sale Deed dated 10.06.1973.
Ex.P.33(a) Typed Copy.
Ex.P.34 Copy of Sale Deed dated 10.06.1973.
Ex.P.34(a) Typed Copy.
Ex.P.35 Encumbrance certificate.
Ex.P.36 Form No. 16.
Ex.P.37 Copy of Sale Deed dated 15.10.54.
Ex.P.38 Form No.15 dated 21.10.2011.
Ex.P.39 Form No.16 dated 26.10.2011.
Ex.P.40 Copy of Sale Deed dated 9.4.2003.
Ex.P.41 Form No.15 dated 07.09.2011.
Ex.P.42 Form No.16 dated 12.09.2011.
Ex.P.43 Katha Extract.
Ex.P.44 Katha Certificate.
Ex.P.45 Form No.15 dated 12.09.2011.
Ex.P.46 Form No. 16 dated 16.09.2011.
Ex.P.47 Katha Extract.
Ex.P.48 Katha Certificate
Ex.P.49 Copy of Sale Deed dated 08.08.90.
Ex.P.50 Katha Extract dated 3.10.2011.
Ex.P.51 Katha Certificate dated 03.10.2011.
Ex.P.52 Application for transfer of telephone.
Ex.P.53 Office Proceedings.
Ex.P.54 Objection to office Proceedings.
Ex.P.55 Endorsement dated 21.11.2011.
Ex.P.56 Application form for a telephone
connection.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 Death certificate of Muniswamappa. Ex.D.2 Death Certificate of Narasamma.
Ex.D.3 Letter to BSNL.
Ex.D.4 Form A.
Ex.D.5 Letter from BSNL to D12 dtd.30-08-2016.
68 O.S.No.8837/2011
Ex.D.6 BSNL RPAD cover.
Ex.D.7 Will dtd.20-05-2009.
Ex.D7 (a) to (I) Signatures
Ex.D.8 Will dtd.18-07-2008.
D8 (a) to(h) Signatures
Ex.D.9 to D.63 Tax paid receipts.
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.