Bangalore District Court
Sri. K.S.Vasudevamurthy vs Sri. K.S.Krishnamurthy on 2 December, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 2nd Day of December, 2016
O.S.No. 5955/2008
Plaintiff/s : Sri. K.S.Vasudevamurthy
S/o Late D.K.Subbaiah
Aged about 59 years,
R/at No.717/A, 58th Cross,
1st Stage, Kumaraswamy Layout
Bengaluru - 78.
[By Sri.A.M.S.R. - Adv.]
-Vs-
Defendant/s : 1. Sri. K.S.Krishnamurthy
S/o Late D.K.Subbaiah
Aged about 62 years
R/at No.202, 1st Main,
8th Cross, Basaveshwara Layout,
BEML 3rd Stage,
Bengaluru.
2. Smt. Sharada
W/o K.S.Krishnamurthy
Aged about 54 years
R/at No.202, 1st Main,
8th Cross, Basaveshwara Layout,
BEML 3rd Stage,
Bengaluru.
3. Sri. N.Vasavaraj
4. Sri. Somu
[D3 & D4 - Deleted]
[D1 & 2 - By Sri. K.R.A.K. - Adv.]
2 OS.No.5955/2008
Date of institution of the suit 05.09.2008
Nature of the suit Partition
Date of commencement of 8.4.2014
recording the evidence
Date on which the judgment 02.12.2016
was pronounced
Total duration Years Months Days
08 02 27
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
*********
JUDGMENT
This suit is filed by the plaintiff for partition and separate possession of his 2/3rd share in the suit property and to direct the defendants 3 and 4 to pay the plaintiff's half share out of the total rent directly to the plaintiff from the date of suit and for enquiry regarding mesne profits and to restrain the defendants 1 and 2 from alienating the suit property.
2. The case of the plaintiff in brief is that, the plaintiff and defendant No.1 are brothers and 2nd defendant is wife of 1st defendant. The plaintiff and 1st defendant are children of late D.K.Subbaiah. The properties belonged to D.K.Subbaiah were partitioned by compromise decree dated 5.8.1971 in OS.No.60/1971. The said compromise was 3 OS.No.5955/2008 entered between the wife of Subbaiah, Smt.Muniyamma and his 4 sons. Smt.Muniyamma was allotted the suit property in the said partition. The said partition was acted upon. The khata is entered in the name of Muniyamma in respect of the suit property. The documents of the suit property are with the 1st defendant. The plaintiff, 1st defendant and their brother K.S.Belliappa had held their share of the joint family in the partition jointly. Smt.Muniyamma died intestate on 26.8.1980. The brother of the plaintiff and 1st defendant by name K.S.Belliappa has died on 24.4.1989 and he had executed a Will in favour of the plaintiff on 20.4.1989. K.S.Belliappa died as bachelor. Therefore, the plaintiff and 1st defendant are entitled to 2/3rd and 1/3rd share each respectively in the suit property which is left by their mother. The defendants 3 and 4 are tenants in the ground and first floor of the suit property. The plaintiff and 1st defendant are in joint possession of the suit property. The plaintiff has learnt that the defendants 1 and 2 are attempting to sell the suit property in favour of defendants 3 and 4 without having any right, title and interest in the suit property. The defendants appear to have created some documents or 1st defendant may have executed a power of attorney authorizing 2nd defendant to sell the property. The partition entered into 4 OS.No.5955/2008 between the plaintiff and 1st defendant on 24.12.2001 does not deal with the suit property and the suit property came to be held jointly between them. Since the defendants 1 and 2 are now trying to alienate the suit property and are not ready to give the plaintiff's share, the plaintiff has filed this suit for partition and separate possession.
3. During the pendency of the suit, the name of defendants 3 and 4 has been struck out by the order passed by learned predecessor of this court on 25.8.2010.
4. The defendants 1 and 2 have appeared through counsel and filed the written statement stating that the suit is not maintainable and is misconceived and the documents relied upon by the plaintiff are concocted and created for the purpose of the case. The defendants have denied that Smt.Muniyamma died intestate on 26.8.1980. It is stated that Smt.Muniyamma has left last Will dated 17.8.1980 to which the plaintiff is an attesting witness. It is stated that as per the Will executed by Muniyamma, the 1st defendant is the absolute owner of the suit property. The Will executed by K.S.Belliappa in favour of the plaintiff as stated in the plaint is disputed by the defendants. It is stated that K.S.Belliappa did not possess any marketable and transferable right, title 5 OS.No.5955/2008 and interest in respect of the suit property to bequeath the same in favour of the plaintiff. Therefore, the plaintiff cannot contend that he has got 2/3rd share in the suit property. Execution of the Will by K.S.Belliappa in favour of the plaintiff has been denied. It is stated that no right, title and interest is confirmed on the plaintiff on the strength of the alleged Will. It is denied that the defendants 1 and 2 are attempting to sell the property to defendants 3 and 4. It is also denied that the defendants had no right, title and interest in the suit property. It is stated that the plaintiff has cleverly avoided to mention the execution and registration of Gift deed dated 24.12.2001 by the 1st defendant in favour of 2nd defendant to which the plaintiff is attesting witness. It is stated that as per the Will executed by Muniyamma, the 1st defendant became the absolute owner of the suit property and subsequently, he has executed the Gift deed in favour of 2nd defendant who is his wife. It is stated that partition is effected between the plaintiff and 1st defendant on 24.12.2001 in respect of the joint family property which were got by them jointly by virtue of compromise decree dated 5.8.1971. It is stated that the suit property is not the subject matter of the said partition, as it is not the joint family property and the plaintiff has not succeeded to the said 6 OS.No.5955/2008 property by virtue of the bequest made by K.S.Belliappa. It is stated that there is no cause of action to the suit and the court fee paid is not proper. It is stated that the suit property is the subject matter of partition decree in which it is allotted to the share of Smt.Muniyamma exclusively. Thereafter, during her life time she executed unregistered Will to which the plaintiff has signed as attesting witness and he has attested the LTM of Smt.Muniyamma. It is stated that as the plaintiff is signatory to the Will, he is estopped from contending that Muniyamma died intestate. It is stated that the suit is filed by suppressing the material facts. It is stated that the plaintiff is even aware of the Gift deed executed by the 1st defendant in favour of 2nd defendant to which the plaintiff is a signatory. It is stated that when the partition entered into between the plaintiff and 1st defendant on 24.12.2001, on the same day, Gift deed was also executed in the same Registrar's office and the plaintiff has signed the said document. The plaintiff was aware of the gift deed executed by 1st defendant in favour of 2nd defendant. It is stated that the defendants have no intention to sell the suit property and they are not made any arrangements to sell the property. On these grounds, the suit is prayed to be dismissed with costs.
7 OS.No.5955/2008
5. On these pleadings, my learned predecessor has framed the following Issues: -
1) Whether the plaintiff proves that, the suit schedule property is the absolute property of their mother Muniyamma?
2) Whether the defendants prove that, Muniyamma on 17.8.1980 had executed the Will in favour of the defendant No.1?
3) Whether the defendants prove that, partition took place between plaintiff and defendant No.1 in OS.No.60/1971?
4) Whether the plaintiff is entitled for relief as sought for?
5) What order or decree?
6. In support of the plaintiff's case, PW.1 is examined. Ex.P1 to P8 are marked. For defendants, DW.1 and 2 are examined. Ex.D1 to D3 are marked.
7. Heard the arguments.
8. My answer to the above issues are as under:-
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: Does not arise. Issue No.4: In the Negative Issue No.5: As per final order, for the following:8 OS.No.5955/2008
REASONS
9. Issue No.1 and 3:- Both these issues are taken together for discussion to avoid repetition.
10. The case of the plaintiff is that there was a partition entered into between the family members of D.K.Subbaiah in OS.No.60/1971 and in the said partition, the suit property which is Shop No.9 has been allotted to the share of Smt.Muniyamma W/o D.K.Subbaiah. In the written statement, the defendants 1 and 2 have also taken the same contention and they have contended that the suit property has been allotted to the share of Smt.Muniyamma in the partition and it is her absolute property. Therefore, there is no dispute between the parties that the suit property has come to the share of Smt.Muniyamma in the partition. This Muniyamma W/o D.K.Subbaiah is defendant No.1 in OS.No.60/1971. The final decree is produced by the plaintiff as Ex.P1. Notice issued by the B.M.P. is produced as Ex.P2. The defendant has also clearly admitted that the suit property exclusively allotted to the share of Muniyamma in OS.No.60/1971. Therefore, there is no dispute between the parties that the suit property was allotted to the share of Muniyamma who is mother of plaintiff and 1st defendant in 9 OS.No.5955/2008 the compromise decree passed in OS.No.60/71. The partition entered into between the legal heirs of D.K.Subbaiah in OS.No.60/1971 is also not in dispute. Therefore, issue No.1 framed in this suit is not the disputed point and both the parties have admitted that the suit property was the absolute property of Muniyamma and that there was partition took place between the LRs. of D.K.Subbaiah in OS.No.60/71. Therefore, as regards issue No.1 there is no dispute between the parties.
11. As regards issue No.3, though there was partition entered into between the legal heirs of D.K.Subbaiah i.e., 4 sons and mother in OS.No.60/71, the plaintiff and defendant No.1 and another brother Belliappa are jointly allotted share. As such there was no partition between the plaintiff and 1st defendant in OS.No.60/71. The partition between the plaintiff and 1st defendant took place by a registered partition deed which is produced as Ex.D2 dated 24.12.2001 and regarding this partition deed also, there is no dispute between the parties. Moreover, partition between the plaintiff and 1st defendant is not the disputed point in the present suit, as the property which was allotted to the share of Muniyamma is the only property in disputed in the present 10 OS.No.5955/2008 suit. Issue No.3 does not arise in the present suit and is wrongly framed, as there is no case of the plaintiff or 1st defendant that in OS.No.60/1971, there was a partition between the plaintiff and 1st defendant. As per the final decree produced at Ex.P1, the plaintiffs of the said suit i.e., K.S.Belliappa, Krishnamurthy the 1st defendant of this case and Vasudevamurthy who is the plaintiff in this case are jointly allotted 'C' schedule. Accordingly, issue No.1 is answered in the affirmative and issue No.3 is answered as does not arise.
12. Issue No.2 :- The case of the plaintiff is that Smt.Muniyamma has died intestate leaving behind the plaintiff and 1st defendant and another son K.S.Belliappa. According to the plaintiff, share of Belliappa has also come to the plaintiff by his Will and plaintiff is entitled for 2/3rd share in the suit property. The 1st defendant has contended that Muniyamma during her life time has executed a Will by bequeathing the suit property in favour of the 1st defendant and to the said Will, plaintiff himself is an attesting witness. Therefore, ownership of Muniyamma and her absolute right over the property is not in dispute. Whether Muniyamma died intestate or she had executed the Will in favour of 1st 11 OS.No.5955/2008 defendant is the material point for consideration in the present suit. Though the plaintiff has contended that his another brother Belliappa had executed a registered Will in his favour and thereby his 1/3rd share has also come to the plaintiff and thereby the plaintiff is entitled for 2/3rd share etc., that will be material only if it is proved that Muniyamma died intestate. If it is proved that Muniyamma had executed the Will in favour of 1st defendant, then the contention of the plaintiff about the Will of Belliappa etc., will loose relevance.
13. The plaintiff has given evidence as P.W.1 and has stated the plaint averments in his chief affidavit. He has stated that the Will dated 17.8.1980 stated by defendant No1 and 2 is concocted and forged and it does not have the LTM of Smt.Muniyamma. He has also stated that his signature on the said document might have been taken on a blank paper for the purpose of obtaining the pension of his father by his mother and such blank sheet signed by him has been misused by defendant No.1 to create the alleged Will. It is also stated that his mother had lot of affection for him and she liked him more than the defendant No.1 and she was suffering with serious ailment and she died on 17.12.1980 and she could not have written a Will as claimed by the 12 OS.No.5955/2008 defendant No.1. In the cross-examination, he has stated that his brothers Harinarayan and Belliappa have died and stated that his father had worked in BPL and his mother was getting pension after his death. He has stated that his brother Belliappa has given application of his mother for getting her pension and stated that he do not remember what all the documents he has signed. He has admitted that as he was a minor there was no occasion for him in 1964 to sign the documents and application for the pension. He has stated that after the death of his brother Belliappa, 1st defendant has been looking after the family. He has stated that he was taking signature of the plaintiff for the purpose of getting pension of his mother. He has admitted that his brother Belliappa died on 24.4.1989 and mother died on 26.8.1980. He has stated that after the death of his mother, Belliappa and Krishnamurthy might have taken his signature and has stated that even during the life time of his mother, the 1st defendant had taken some signatures and has stated that he has not asked what is written in the said blank paper and has not taken the copy of the same. He has admitted that the defendant No.1 is a medical representative and he was looking after the mother and brothers out of his salary. The witness has also stated that they were even getting rents from 13 OS.No.5955/2008 the shops. He has admitted that they have got partitioned the property on 24.12.2001 and he is getting the rent from Shop Nos.10 and 11 and 1st defendant is receiving the rent from the suit property. He has stated that as an elder of the family, 1st defendant is receiving rent. He has admitted that DW.2 Dr.Jayaprakash is the family doctor and is a gentleman. The witness has identified his signature and writing in Ex.D1 and has stated that he has written that it is the LTM of Muniyamma and he has attested it and has written as attested and then signed the same and the document is marked as Ex.D1 and signature is marked as Ex.D1(a). He has also admitted that he has signed the document as seen in Ex.D1(b). He has stated that at the time of getting family pension, somebody was required to attest the LTM, therefore, he has put the signature. He has stated that at that time it was blank. He has also identified the signature of the doctor who has signed the Will as a witness. He has denied that his mother has executed the Will by bequeathing the suit property to the 1st defendant. He has denied that by knowing the contents of the Will and due execution of the Will by his mother, he has signed the same as attesting witness. He has identified his signature in Ex.D3 Gift deed. He has stated that his signature was taken when he was signing Ex.D1 and 14 OS.No.5955/2008 he is not having knowledge about Ex.D3. He has admitted that he has signed all the documents on the same day. He has denied that for executing the Ex.D2 and D3, they all went together and 2nd defendant was also present. He has denied that he has consented for the Gift made by defendant No.1 in favour of defendant No.2 and has signed the document as a witness. He has stated that in Ex.D2 it is not written that he is entitled for share in Shop No.9. He has stated that the 1st defendant has told him that they can look it later. He has admitted that he has received the property which has come to his share in the partition deed Ex.D2. He has denied that he has no right in the suit property.
14. The plaintiff has produced the final decree passed in OS.No.60/1971 in which the suit property came to the share of Muniyamma as Ex.P1. The notice given by the B.M.P. to Muniyamma is produced as Ex.P2. Death certificate of Muniyamma is produced as Ex.P3. The alleged Will executed by Belliappa in favour of plaintiff is produced as Ex.P4. His death certificate is marked as Ex.P5. Application given in Form No.2 for caste certificate which contains the thumb impression of Muniyamma is marked as Ex.P6. Application given by Muniyamma for family pension is 15 OS.No.5955/2008 produced as Ex.P7. Copy of the partition deed dated 24.12.2001 entered into between the plaintiff and 1st defendant is produced as Ex.P8.
15. 1st defendant has given evidence as DW.1 and has stated his contentions taken in the written statement. He has stated about the Will executed by his mother in his favour and has stated that the suit property has been bequeathed to him and he became the absolute owner of the suit property and subsequently, he has gifted the same to his wife i.e., defendant No.2 and to this, plaintiff is also witness. In the cross-examination, he has admitted that in Ex.D1 there is no LTM of his mother in the first page. He has stated that two days before the death of his mother, they came to know that she was having cancer. He has admitted that within 10 days of Ex.D1 Will, she died. He has stated that Ex.D1 might have been prepared by the plaintiff as per the instructions of his mother. He has stated that Doctor was called by the plaintiff as per the instructions of his mother to sign the document as a witness. He has stated that Dr.Jayaprakash was treating his mother and admitted that his mother was getting pension and has denied that for getting the family pension, she was required to put LTM. He has admitted that the plaintiff and 16 OS.No.5955/2008 his elder brother Belliappa were looking after the pension of his mother and admitted that the application like Ex.P7 was required to be given at the time of receiving the pension. He has stated that in 1997, the Khata of the suit property changed in his name and has denied that by stating that for change of khata in his name, he has taken the signature of the plaintiff on the blank paper. He has denied that LTM in Ex.D1 is not that of his mother. He has denied that she was not in good health at the time of executing the Will. He has denied that by taking LTM of somebody on a blank document, he has created the Will. He has denied that without informing the contents of Ex.D3 Gift deed, the signature of the plaintiff was taken.
16. DW.2 Dr.Jayaprakash is stated to be the attesting witness to the Will. He has stated in his chief evidence that he is the family doctor of their family and he has regularly visited to their house and stated that on 17.8.1980, he has attested the Will executed by Muniyamma and she has put LTM in his presence and himself and plaintiff have signed the document as witnesses. He has stated that Muniyamma was capable of understanding the contents of the Will and it was read over to her. In the cross-examination, he has stated that 17 OS.No.5955/2008 he has read the Will and the age of Muniyamma was around 60 to 70 years at that time and he know Muniyamma from his middle school. He has stated that Vasudevmurthy i.e., plaintiff has read over the contents of the Will to Muniyamma and he has also read the same. He has stated that from 1971, he is giving treatment to Muniyamma. He has stated that in the hall of the house of Muniyamma, the Will was signed and at the time of executing the Will, Muniyamma, Belliappa and Vasudevmurthy and himself were present. He has stated that Vasudevmurthy has also signed the Will. He has stated that Muniyamma was having breast cancer and was also having Asthma. He has stated that in routine course he had gone to their house to park his scooter and then he was called to sign the Will. He has stated that as he has seen Muniyamma putting her LTM on this document, he can say that it is the LTM of Muniyamma. He has stated that as Krishnamurthy was looking after her medical expenses, she was intending to give the property to Krishnamurthy. The witness subsequently stated that he do not remember whether the LTM to the Will was put in his presence by Muniyamma.
18 OS.No.5955/2008
17. The defendants have produced the Will alleged to have been executed by Muniyamma in favour of 1st defendant as Ex.D1. In this Will it is stated that the suit property came to her share in the partition in OS.No.60/1971 and she is bequeathing the same in favour of her son K.S.Krishnamurthy, as he is incurring the expenses of her treatment. The signature of plaintiff and DW.2 is also appearing as witness to the document. The signature of plaintiff is even appearing as the person who has attested the LTM of Muniyamma. Partition deed entered into between the plaintiff and 1st defendant on 24.12.2001 in respect of other properties is produced as Ex.D2. The Gift deed executed by defendant No.1 in favour of defendant No.2 in respect of the suit property on 24.12.2001 is produced as Ex.D3.
18. On looking to the pleadings, evidence and documents produced, the admitted facts are that the suit property Shop No.9 is allotted to Muniyamma in the compromise decree in OS.No.60/1971. According to the plaintiff, Muniyamma died intestate and plaintiff and defendant No.1 are entitled for share in the suit property. The plaintiff contends that as another brother Belliappa had executed a Will in his favour as per Ex.P4, the plaintiff is 19 OS.No.5955/2008 having 2/3rd share and defendant No.1 is having 1/3rd share in the suit property. In Ex.P1 final decree, the name of another brother Harinarayan is also appearing and share is given to him in that partition. This Harinarayan is stated to have died, his LRs. are not parties to the present suit. If the suit property is the absolute property of Smt.Muniyamma, if she died intestate, the property would come to all her children including another son K.S.Harinarayan or his LRs who are not parties to the present suit. However, defendants 1 and 2 contend that Muniyamma had executed a Will dated 17.8.1980 by bequeathing the suit property in favour of 1st defendant. It is contended that the plaintiff and DW.2 are the attesting witnesses to this Will. The plaintiff has seriously disputed the Will and contended that this Will is created and Muniyamma has not executed the Will and the LTM found in Ex.D1 is not that of Muniyamma and this Will is surrounded by suspicious circumstances.
19. Interestingly this Ex.D1 Will contains two signatures of the plaintiff as seen in Ex.D1 and both these signatures are admitted by him and are marked as Ex.D1(a) and (b). Ex.D1(a) signature is put as a witness to the document and Ex.D1(b) signature is to attest the LTM of 20 OS.No.5955/2008 Muniyamma as mentioned in the document. P.W.1 in his cross-examination has admitted that he has put signature in Ex.D1 by writing that the LTM belongs to Muniyamma and he has signed by attesting her LTM as Ex.D1(b). However, the plaintiff contends that he has put the signatures on the blank documents and his signature was taken by representing that the LTM of Muniyamma was required to be attested for giving application for taking pension. If the document did not contain the LTM of Muniyamma, how the plaintiff could write as LTM belongs to Muniyamma is to be explained by the plaintiff. When the plaintiff has written as LTM is that of Muniyamma and is attested by him, it is presumed that there was LTM existing at that place and he has identified the same as that of Muniyamma and attested it and signed it. If there was no LTM on this Ex.D1 document when plaintif was putting signature, there would not have been any occasion for the plaintiff to write as, LTM is that of Muniyamma and attested by him and sign. Though the plaintiff can contend that his signature was taken as a witness to the document as seen in Ex.D1(a) to the blank document, the plaintiff cannot contend that even the writing identifying the LTM of Muniyamma and writing as attested by him and then putting signature as per Ex.D1(b) was also 21 OS.No.5955/2008 made on a blank sheet and even without there being any LTM. The plaintiff who has written that it is the LTM of Muniyamma and attested by him, is now estopped from contending that the LTM seen in Ex.D1 is not that of his mother Muniyamma. The place at which the LTM has been put and the subsequent writing identifying this LTM, would clearly show that LTM was there on Ex.D1 when this writing was made by the plaintiff by identifying the LTM of Muniyamma.
20. Moreover, DW.2 who is one more attesting witness to Ex.D1 Will, in his cross-examination has clearly stated that as he has seen Muniyamma putting her LTM on Ex.D1, he is telling that it is her LTM. Though in the finishing part of his cross-examination, the witness has stated that he do not remember whether Muniyamma had put her LTM in his presence, his statement in earlier part of cross-examination would clearly show that he has seen Muniyamma putting her LTM on Ex.D1. As stated above, the LTM was available when plaintiff identified the LTM and attested it by putting signature as Ex.D1(b). DW.2 has clearly stated that he has seen Muniyamma putting the LTM on Ex.D1. Under such circumstances, the LTM in Ex.D1 is sufficiently proved as 22 OS.No.5955/2008 that of Smt.Muniyamma. The evidence of DW2 would also show that this LTM was put in the presence of DW.2. The evidence of P.W.1 would show that it is P.W.1 who has identified the LTM of Muniyamma in Ex.D1.
21. The Main contention of the plaintiff is that when he was putting the signature on Ex.D1, it was a blank sheet and it is also highlighted that first page of Ex.D1 contain no LTM. The plaintiff has stated that as Muniyamma was getting pension, she was required to give application to the authorities and at that time, signature of the plaintiff has been taken on the blank paper and that has been misused by the 1st defendant. In the cross-examination, P.W.1 has stated that 2-3 times defendant No.1 has taken his signatures on the blank papers stating that it is required for getting the application for pension of his mother. The very same P.W.1 in his evidence has stated that, his elder brother Belliappa was looking after the affairs of the family and Belliappa has given application for getting pension of his mother and has also secured the documents and he has stated that after the death of Belliappa, 1st defendant is looking after the family. The evidence of this P.W.1 also show that Belliappa died on 24.4.1989 and Muniyamma died on 26.8.1980. Therefore, 23 OS.No.5955/2008 Belliappa died after the death of his mother. If Belliappa was looking after the family and was giving application and getting the documents for getting the pension to his mother, then there would not have been any occasion for the 1st defendant to take the LTM of Muniyamma on the blank papers and signature of the plaintiff on the blank papers with writing as LTM of Muniyamma attested by plaintiff. As it was Belliappa who was moving application for getting the pension of Muniyamma and it was Belliappa who was managing the joint family during his life time till 1989 i.e., even after the death of Muniyamma, as admitted by P.W.1, the contention of the plaintiff that for the purpose of giving some application for pension, his signature on the blank papers were taken cannot be accepted.
22. Moreover, in the cross-examination of P.W.1, it has been suggested that the plaintiff and Belliappa were taking care of the pension of Muniyamma. If that is so, there would not have been any occasion for the 1st defendant to take signature of the plaintiff or the LTM of Muniyamma on the blank paper by representing that the LTM and the signature are required for getting the pension to Muniyamma. As stated above, Ex.D1 contains the LTM of Muniyamma and 24 OS.No.5955/2008 also signature of plaintiff and even DW.2. Admittedly, DW.2 is a family Doctor who was treating the mother of plaintiff. P.W.1 has admitted in his cross-examination that, DW.2 is a gentleman and is commanding respect. It is not the case of the plaintiff that DW.2 is having some personal interest in this matter. Under such circumstances, the evidence of DW.2 which states that Muniyamma has executed the Will by bequeathing the suit property in favour of 1st defendant cannot be doubted. DW.2 has stated that, in a routine course while he was parking his scooter in the compound, he was asked to come and witness the Will and sign the same. Therefore, the evidence available clearly show that Muniyamma has executed the Will and the plaintiff and DW.2 have signed the same as witnesses and she was intending to bequeath the suit property in favour of 1st defendant.
23. One of the suspicious circumstances surrounding the Will is stated to be ill-health of Muniyamma who died within 10 days of the date of the Will. The Will is dated 17.8.1980 and Muniyamma died on 26.8.1980 as seen in Ex.P3. Though the plaintiff has stated that health of Muniyamma was not good and she died within 10 days of making the Will and she was admittedly suffering from breast 25 OS.No.5955/2008 cancer, there is no evidence before the court to show that ill health has made her incapable of executing the Will. A person who is suffering from Cancer who is expecting the death at any time, cannot be considered as incapable of bequeathing the property when he is in a position to understand the things. Moreover, DW.2 who is family Doctor has stated that she was having proper mental condition to execute the Will. Under such circumstances, suspicious circumstance highlighted by the plaintiff is cleared by evidence of DW.2 and the circumstances established before the court. Existence of suspicious circumstances as contended by the plaintiff is not established. Even if there is any slight suspicious circumstance like ill-health of Muniyamma that has been cleared by the evidence of family Doctor DW.2. When the signature of plaintiff and DW.2 in Ex.D.1 is proved, the burden is heavily on the plaintiff to disprove the Will executed by Smt.Muniyamma to which the plaintiff himself is an attesting witness. Evidence of DW.2 also supports the Will. Under such circumstances, the valid execution of Ex.D1 Will by Muniyamma is clearly established. As per Ex.P1 Muniyamma is absolute owner of the property. Therefore, she had the capacity to bequeath the property to any person of her choice.
26 OS.No.5955/2008
24. The subsequent conduct of the parties would also help the court in accepting the will as the genuine Will executed by Muniyamma. Admittedly, in Ex.P1 partition, the suit property came to the share of Muniyamma. The plaintiff, the 1st defendant and another brother Belliappa have taken the properties jointly and 3 shops No.8, 10 and 11 have come to their share jointly. Subsequently, Belliappa died, he alleged to have executed Will in favour of the plaintiff in which it is mentioned that the mother was intending to give her shop No.9 to the plaintiff, but she died before executing any document and this Belliappa has bequeathed his share in favour of the plaintiff. The proof of Will of Belliappa is not the issue in the present suit. Subsequently, the plaintiff and 1st defendant have got partitioned the property which have come to their share in Ex.P1 by registered partition deed dated 24.12.2001 which is marked as Ex.D2 and the copy of the same is marked as Ex.P8. In this partition, all the properties which have come to the share of the plaintiff and 1st defendant in the partition entered in OS.No.60/1971 have been partitioned. In this partition deed made in 2001, the suit property in Shop No.9 is not included. Admittedly, Muniyamma died in 1980 and this partition deed is made in 2001. According to the plaintiff, even after the death of 27 OS.No.5955/2008 Muniyamma, the property was enjoyed jointly and after the death of Belliappa, the 1st defendant was collecting the rent on behalf of the joint family, as he is the elder member of the family.
25. P.W.1 has clearly admitted that the 1st defendant was receiving the rent. He has stated that he was receiving the rent as elderly member. If the suit property in Shop No.9 was also the property jointly belonging to the plaintiff and 1st defendant and 1st defendant as elder member of the family was receiving the rent on behalf of the joint family of plaintiff and 1st defendant, definitely, this property would have been included in the partition deed. In the property allotted to the share of 1st defendant in this partition, the southern boundary of Shop No.8 is shown as Shop No.9, that shop No.9 is the suit property of the present suit which was belonging to Muniyamma and then bequeathed by her in favour of 1st defendant. Though the plaintiff was aware that Shop No.9 belonged to his mother and she died in 1980, the said property is not included in this partition. No explanation is given in the entire plaint as to why the said property was not included in the partition. However, for the first time in the cross-examination, P.W.1 has stated that at 28 OS.No.5955/2008 the time of partition, he asked his brother about the partition of this property, but he told that they will see later. This partition is dated 24.12.2001 and present suit is filed in 2008. Even assuming that in 2001 the 1st defendant told him that they can see later about the partition of Shop No.9, thereafter, till 2008, the plaintiff has not taken any action for getting his alleged share in the suit property. This circumstance also show, that as the property was already bequeathed in favour of 1st defendant, it was not included in the partition.
26. Apart from this, on the same day on 24.12.2001, the Gift deed is also executed by 1st defendant in respect of the suit property in favour of his wife who is 2nd defendant. This gift deed is marked as Ex.D3. Interestingly, the plaintiff is a witness to this Ex.D3 also. He has stated that in the Sub-registrar office, his signature was taken to Ex.D3 and he has signed the said document without knowing the contents. This plaintiff has contended that he has signed the Will when it was blank and made the writing that it is the LTM of Muniyamma and attested by him when there was no LTM. PLaintiff admits the partition deed entered into between himself and 1st defendant, but contends that to Ex.D3 Gift 29 OS.No.5955/2008 deed, he has signed as a witness without knowing the contents. As Ex.D3 Gift deed is registered before the Sub- Registrar, there is a presumption in favour of proper execution of the document. The plaintiff is an educated person and is doing the sales of second hand vehicles and is having knowledge of various documents to be executed and sale transaction etc., as such he cannot contend that he has signed the blank document or without knowing the contents etc. The very fact that on the date of partition deed, this Gift deed was also executed would further prove that the property has come to the 1st defendant as per the valid Will executed by Muniyamma and the plaintiff as signatory to the Will was aware of the same and for that reason, the said property was not included in the partition deed and on the same day, 1st defendant has executed the Gift deed and the plaintiff's signature was taken to the document and as plaintiff was very well aware that the property has come to the 1st defendant, has signed the Gift deed as a witness.
27. By looking to the evidence of P.W.1, DW.1 and 2 and the documents, only conclusion to which one can arrive at, is that suit property was belonging to Muniyamma and she by exercising the absolute right over the property 30 OS.No.5955/2008 bequeathed it in favour of the 1st defendant and for this, plaintiff and DW.2 have signed as attesting witnesses by knowing the contents and as she had already bequeathed the property in favour of 1st defendant, the said property was not included in the subsequent partition entered into between the plaintiff and 1st defendant as per Ex.D2 and the 1st defendant has gifted the said property in favour of his wife by Ex.D3 gift deed to which the plaintiff has also signed as a witness. The entire events would prove the valid execution of the Will and valid bequest made by Muniyamma in favour of the 1st defendant. Contrary contentions of the plaintiff disputing the Will are not established in this case. For all the material documents of the present case, the plaintiff is a signatory. The plaintiff is an educated person and is doing business and has admitted that he will not put the signatures without knowing the contents of the documents and he has admitted his signatures on all these documents. Looking from any angle, the 1st defendant is successful in proving the valid execution of the Will by Smt.Muniyamma in his favour.
28. The learned counsel for the plaintiff has drawn my attention to the decision reported in (1995) 6 S.C.C. 213 - 31 OS.No.5955/2008 Kashibai W/o Lachiram and another Vs. Parwathibai W/o Lachiram and others, in which the Hon'ble Supreme Court has considered the requirements of valid execution of the Will and held that, without attestation execution of the deed of Will is not valid and no witness deposing that the alleged Will was signed by the deceased in his presence or that he had attested the document then execution of the Will is not proved. In the present case, as discussed above, valid execution of the Will by Muniyamma in favour of 1st defendant is sufficiently established. The attesting witness DW.2 has also stated about the execution of the Will by Muniyamma even the plaintiff who is attesting witness to Ex.D1, has admitted his signature and also admitted that he has attested by making writing that LTM is that of Muniyamma. Therefore, the requirement for proving the valid execution of the Will has been complete. Therefore, the decision does not help the plaintiff. In another decision reported in (2008) 15 S.C.C. 365 - Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and others, it is held that, when only one attesting witness is examined and it was not proved that both the attesting witnesses had either attested the Will in the presence of each other or that the testator had acknowledged his signature in the presence of the other attesting witness, it 32 OS.No.5955/2008 is held that the Will is not legally proved. It is also held that, when there are large number of suspicious circumstances surrounding the execution of the Will by the testator having not been explained by the respondent, the Will could not be said to have been legally proved. The Hon'ble Supreme Court has also held that, whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. On going through the decision, this decision also cannot be applied to the present case, as valid execution of the Will has been sufficiently proved by examining the attesting witnesses and even the suspicious circumstances highlighted by the plaintiff have been explained.
29. The counsel for the defendants has drawn my attention to the decision reported in 2016 (3) AKR 533 - Chennappa Gowda and others Vs. N.C.Rajashekara and others, in which the Hon'ble High Court has held that, contents of testamentary document will have to be appreciated in context of circumstances and not vis-à-vis rules for intestate succession and the court examines nature of bequest only for limited purpose. In another decision reported in ILR 1999 KAR SN. 52, it is held that, the document required by law to be attested shall be proved by calling the attesting witnesses 33 OS.No.5955/2008 to the box, Will, mortgage deed and Gift or settlement deed are the documents which requires attestation. In AIR 2005 S.C. 780 - Sridevi and others Vs. Jayaraja Shetty and others, the Hon'ble Supreme Court, has held that, "onus to prove the Will lies on the propounder in the absence of suspicious circumstances surrounding executing, proof of testamentary capacity and signature of testator, sufficient. It is also held that, it is well settled provision of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The Onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent man in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same." On going 34 OS.No.5955/2008 through all these decisions and on considering the facts of the present case and the evidence given in this case, the Will executed by Smt.Muniyamma has been proved. The entire circumstances of the case, would clearly prove that the Will was executed by Muniyamma and it was even known to the plaintiff and plaintiff himself was signatory to the Will and even in the subsequent documents like Gift deed of the 2nd defendant, plaintiff has signed as a witness. Therefore, on looking to the facts and circumstances of the case, execution of the Will by Muniyamma on 17.8.1980, is sufficiently proved. Accordingly, issue No.2 is answered in the affirmative.
30. Issue No.4 :- For the discussion made on issue No.2, the valid execution of the Will in favour of 1st defendant by Muniyamma has been proved in this case. Admittedly, the suit property was the absolute property of Muniyamma, she has bequeathed the suit property in favour of 1st defendant. Defendant No.1 has subsequently gifted this property to the 2nd defendant. Therefore, the suit property is not available for partition between the plaintiff and defendant No. 1. As stated above, even other brother or his LRs. are also not party in the present suit. The plaintiff has failed to prove that 35 OS.No.5955/2008 Muniyamma died intestate. Defendant No.1 has proved that Muniyamma had executed a valid Will by bequeathing the property in his favour. Therefore, the plaintiff is not entitled for partition and separate possession and other reliefs prayed in the suit. Since Muniyamma had not died intestate and she has executed the Will in respect of the suit property, the proof of alleged Will executed by Belliappa in favour of the plaintiff as per Ex.P4 need not be considered in the present suit. The plaintiff is not entitled for the relief prayed in the suit. Accordingly, this issue is answered in the negative.
31. Issue No.5:- For the discussion made on the above issues, suit of the plaintiff is to be dismissed with costs. Accordingly, following order is passed :-
ORDER The suit of the plaintiff is dismissed with costs.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 2nd day of December, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.36 OS.No.5955/2008
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 K.S.Vasudev Murthy List of documents exhibited for plaintiff:
Ex.P1 Certified copy of decree in OS.No.60/1971 Ex.P2 Notice issued by B.M.P. Ex.P3 Death certificate Ex.P4 Will dated 20.4.1989 Ex.P5 Death certificate Ex.P6 Caste certificate Ex.P7 Application of Smt.Muniyamma Ex.P8 Certified copy of partition deed dated 24.12.2001 List of witnesses examined for defendants:
DW.1 K.S.Krishnamurthy DW.2 Dr.D.Jayaprakash
List of documents exhibited for defendants:
Ex.D1 Will dated 17.8.1980
Ex.D1(a) to (c) Signatures
Ex.D2 Partition deed dated 24.12.2001
Ex.D3 Gift deed dated 24.12.2001
Ex.D3(a) to (b) Signatures
XVII Addl. City Civil & Sessions
Judge, Bengaluru.
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