Bangalore District Court
Champavathi vs Vijay R on 4 April, 2026
1
O.S.No.6366/2020
KABC010227062020
IN THE COURT OF THE XXXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, AT BENGALURU (CCH-39)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
C/c. XXXVIII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 4th day of April, 2026
O.S.No. 6366/2020
Plaintiffs : CHAMPAVATHI,
W/o. Late. R. Vasudevamurthy Rao,
Aged about 66 years,
Residing at Door No.2/59-D1,
"Om Krupa", Mayagundi,
Vasuki Nagara, Ambagilu,
Udupi.
-Vs. (By Sri. VHB. Advocate)
Defendants: 1. R. VIJAY.
S/o. Late. R. Vasudevamurthy Rao,
Aged about 40 years,
Residing at No. 388, 1st Cross,
1st Main, BEML 3rd Stage,
Rajarajeshwari Nagar (RR Nagar),
Bangalore-560 098
2. BHARATHI AMAR,
W/o. N.G. Amarnath,
D/o. Late. R. Vasudevamurthy Rao,
Aged about 39 years,
2
O.S.No.6366/2020
Residing at 2nd Floor,
Creative House,
Opposite Hotel New Kinara,
Vidyagiri, Moodabidri,
D.K. District - 574 227
D1 : By Sri. RMV.
D2 : By Sri.JK. Advocates)
Date of Institution of the suit 16.12.2020
Partition & Separate
Nature of the suit Possession
Date of the commencement
of recording of the Evidence. 18.07.2023
Date on which the judgment
04.04.2026
is pronounced.
Year/s Month/s Days
Total duration 05 03 18
JUDGMENT
1. The Plaintiff has maintained the present suit for the relief of partition of Plaintiff's 1/3 share in the suit schedule property and to direct the Defendants to effect partition by metes and bounds to an extent of 1/3rd share.
2. The brief facts of the case of the Plaintiff is that one late R. Vasudevamurthy Rao is said to have being employed in B.E.M.L 3 O.S.No.6366/2020 Factory, situated at Kolar Gold Fields and he was the member of the said B.E.M.L Employees House Building Co-operative Society Limited and he was allotted with a site bearing No.388, in the layout formed by the said society at Halagevaderahalli village as on 06.07.1989. And based upon the said absolute Sale Deed conveyed in respect of Site No.388, a Deed came to be registered in favour of said R. Vasudevamurthy Rao. And that the Plaintiff herein is said to have been working as a teacher in a School in Bangarpet, Kolar District and had contributed for construction of the house on the said site in site No.388. And that based upon the joint contribution by R. Vasudevamurthy Rao and the Plaintiff herein a house was constructed and that jointly they have also availed a housing loan from the State Bank of India by mortgaging the property and when the house building was constructed, the Defendants were still students and pursuing their education. And that the construction of the house was completed in the year 2003. The Plaintiff and her husband R. Vasudevamurthy Rao were living in the house constructed by them with their children i.e. the Defendant Nos.1 and 2 herein. And that the Plaintiff was working as a teacher and Sri. R. Vasudevamurthy Rao and Plaintiff worked hard and out of their hard earned money had provided good education to their son, 4 O.S.No.6366/2020 i.e. the Defendant No.1 whereby he has secured a respectable job. And that the Defendant No.1 got married in the year 2009. And that the Defendant No.2 being the daughter of the Plaintiff and said Vasudevamurthy Rao was also provided with good education and got married and thereby the Defendant No.2 was also living happily with her husband in her matrimonial home. And that being the case in the year 2009, the 1 st Defendant insisted to sell the Suit Schedule Property. And that the Plaintiff opposed for the said proposal. The 1st Defendant and his wife were bent upon selling the Suit Schedule Property. And that the Plaintiff is suffering from health related issues. And that the 1st Defendant did not pay any amount towards the maintenance and medical expenses of the Plaintiff. And that R. Vasudevamunty Rao is said to have expired on 09.05.2018 leaving behind the Plaintiff and the Defendants herein to succeed to the estate of said R. Vasudevamunty Rao. And that the Plaintiff had insisted the 1 st Defendant to divide the Suit Schedule Property and give 2/3rd share to her and the 2 nd Defendant and during when the Defendant No.1 informed the Plaintiff and the 2nd Defendant that he would pay to them the value of their share in the Suit Schedule Property and thereby the 1st Defendant gave consent for transfer of khata of schedule 5 O.S.No.6366/2020 Property to the name of the Plaintiff and the 1st Defendant gave a declaration to the BBMP admitting the rights of the Plaintiff and the 2nd Defendant and expressed his no objection for transfer of khata of the suit Property.
3. It is also the case of the Plaintiff that the 2 nd Defendant repeatedly reminded the 1st Defendant about his promise and insisted for payment of the value of their share. But later on the Defendant No.1 refused to make any payment and also started ill-treating the Plaintiff and refused to give the Plaintiff her legitimate share. And in the month of October 2020 again the Plaintiff visited the suit schedule property. The 1st Defendant refused to effect partition and instructed the Plaintiff to approach the Court. Therefore, based upon the said cause of action the Plaintiff has approached this Court seeking the relief of 1/3rd share in the Suit Schedule Property.
4. The 1st Defendant appeared and has filed his Written Statement and has admitted the averments and the relationship with regard to para-2 and 3 with regard to the avocation and the acquiring of the Property by the father of the 1 st Defendant to be true. However, denied of the fact that R. Vasudevamurthy Rao 6 O.S.No.6366/2020 and the Plaintiff jointly invested and spent their money out of their employment had contributed to put up the construction in the said Property. And further contended that the house site belonging to the father of the 1st Defendant alone and he alone had constructed the house out of his own funds and partly admitted the fact that he was graduated in B.E. Electronics as well as M.B.A. but contended that he has availed educational loan and completed his education. And further denying the other averments of the plaint, the Defendant has contended that, the Plaintiff has left the house on 15th August, 2009 stating that she is going on a Pilgrimage without informing her husband or the children. While leaving the house the Plaintiff has taken all the gold and silver articles which were in the house. And at the same time the Plaintiff did not carry her cell phone with her and the same was left with the 2nd Defendant, which clearly shows that the Plaintiff had ulterior thoughts about her actions. And that the Defendant came to know through the daughter of elder sister of the Plaintiff that she was settled in Udupi. And that the Defendant visited her and requested her to return home. But the Plaintiff out rightly rejected.
5. It is also his case that the Plaintiff has also approached 7 O.S.No.6366/2020 the Rajarajeshwari Nagar Police Station and lodged a complaint during October 2009 against the Defendant and his father. And that the Plaintiff had averted from her duty of looking after her husband who was affected with Parkinson disease. And that the Plaintiff never took care of her husband who was affected with Parkinson disease. And Plaintiff is interested only in the Property of her late husband and never took care of her husband. And that the Plaintiff is a retired teacher and is getting pensionary benefits. And that the Plaintiff has suppressed the true and material facts and has approached this Court and that the Defendant No.1 has paid the installments of home loan and that during the lifetime of R. Vasudevamurthy Rao in the year 2007, the said loan was foreclosed and that one BHK was also constructed in the first floor with the funds of R. Vasudevamurthy Rao and the Defendant No.1. And that the 1 st Defendant has paid the Property taxes pertaining to the suit property from the year 2007 to 2017 and that the Plaintiff just to file the present suit has paid the taxes for the year 2018-19 and 2019-20 only with an ulterior motive. And on these and other grounds, the Defendant No. 1 has specifically contended that the Defendant No.1 was informed by his uncle ie., the brother of his father R. Vasudevamurthy Rao by name Nagendra Rao, that 8 O.S.No.6366/2020 the brother of Sri R. Vasudevamurthy Rao had left a sealed cover with him and had instructed him to open it only if late Sri R. Vasudevamurthy Rao's family members have any dispute among themselves in relation to the property and that the sealed cover contains a Will written by R. Vasudevamurthy Rao which bestowed the property to the 1st Defendant and has stated that the Plaintiff and Defendant No. 2 are not entitled to any share in the property. And that the said Will is also produced along with the Written Statement. And on these and other grounds, the Defendant No. 1 has sought for dismissal of the above suit.
6. The Defendant No. 2, the daughter of the Plaintiff herein, has filed her written statement and she has admitted the case of the Plaintiff and has sought for a counter claim seeking 1/3rd share of her share in the Suit Schedule Property. 7 The Plaintiff has also filed a rejoinder to the claim made by the 1st Defendant with regard to denial of the said Will alleged to have been executed by R. Vasudevamurthy Rao and further contended that there was no such Will executed by R. Vasudevamurthy Rao and that the signatures found on the Will are not that of R. Vasudevamurthy Rao. And that if at all there is 9 O.S.No.6366/2020 any Will, R. Vasudevamurthy Rao would have given the said Will to the Plaintiff immediately after the death of R. Vasudevamurthy Rao. And only after the negotiations for compromise to the partition of suit Property, the 1st Defendant and his uncle have got fabricated the said Will. Therefore, the Plaintiff has sought for the relief of as claimed by her in the plaint.
8. Based upon the above pleadings of the parties, my learned predecessor in office has framed the following issues :-
ISSUES
1. Whether the Plaintiff proves that the Suit Schedule Property is the Property of herself and her husband R. Vasudevamurthy Rao?
2. Whether Plaintiff and Defendant No.2 proves that they are entitled for 1/3rd share each by metes and bounds in the Suit Schedule Property ?
3. Whether Plaintiff and Defendant No.2 are entitled for relief as sought in the suit and Written Statement?
4. What order or decree?
9. The Plaintiffs in order to establish the Plaintiff's case has examined herself as PW.1 and got marked Ex.P1 to P19 10 O.S.No.6366/2020 documents. Per contra Defendant No. 1 & Defendant No.2 have examined themselves as DW.1 & DW.2 and witnesses to the Will as DW.3 and DW.4 and got marked Ex.D1 to D8 documents. Further Ex.C1 to C3 are also marked.
10. Heard the Learned Counsel for the Plaintiff and the Learned Counsel for the Defendants. The counsel for the Plaintiff has filed notes of arguments and has relied upon 3 citations. Perused the same.
11. My findings to the above issues are as under :-
Issue No.1 .. In the affirmative Issue No.2 .. In the affirmative Issue No.3 .. In the affirmative Issue No.4 .. As per final order for the following:
REASONS
12. Issue No.1 :- Issue No.1 is casted upon the Plaintiff to prove that the Suit Schedule Property is the Property of herself and her husband R. Vasudevamurthy Rao. In order to establish the said issue, the Plaintiff has examined herself as PW1, reiterating the plaint averments and got marked Ex.P1 to P19 documents. Before discussing the oral evidence, it is necessary 11 O.S.No.6366/2020 to appreciate the documentary evidence placed on record by both the Plaintiff and the Defendants herein.
13. Plaintiff No. 1 has produced Ex.P1, which is the sale deed dated 06.07.1989 executed by B.E.M.L Employees House Building Co-operative Society Limited, represented by its Secretary in favour of R. Vasudevamurthy Rao, son of late R Padmanabha Rao. The schedule mentioned in the said deed is Site No. 388 and the sale consideration amount is 53,060/-. Ex.P2 is the possession certificate issued by the B.E.M.L Employees House Building Co-operative Society Limited in favour of R. Vasudevamurthy Rao vide resolution dated 07.05.1987. Ex.P3 is the Khata registration certificate standing in the name of R. Vasudevamurthy Rao. Ex.P4 is the Khata certificate standing in the name of R. Vasudevamurthy Rao. Ex.P5 is the Khata certificate dated 09.07.2018 stamped in the name of Champavathi, the Plaintiff herein. Ex.P6 is also the Khata Uthar reflecting the name of the Plaintiff herein. The said document also reflects of a shara as under :-
"ಸ್ವ ತ್ತಿ ನ ಖಾತೆಯನ್ನು ಮರಣ ಸಮರ್ಥನ ಪತ್ರ ಹಾಗೂ
ಪ್ರ ಮಾಣ ಪತ್ರ ಗಳನ್ನು ಈ ಕಛೇರಿಯಲ್ಲಿ ದಾಖಲೆ ಪುಸ್ತ ಕದಲ್ಲಿ
12
O.S.No.6366/2020
ಅವರ ಹೆಸರಿಗೆ ವರ್ಗಾಯಿಸಲಾಗಿದೆ ಎಂದು ತಿಳಿಸಲಾಗಿದೆ."
14. Ex.P7 is the property B-register Extract for the year 2018-
19. Ex.P8 is the receipt for having paid the khata transfer. Ex.P9 is the tax paid receipt. Ex.P10 is the property tax paid under self- assessment scheme. Ex.P11 is the digital tax paid receipt. Ex.P12 is the tax paid receipt challan under the self-assessment scheme. Ex.P13 is the tax paid receipt. Ex.P14 to 18 are the relevant portions of Ex.D8. Ex.P19 is the copy of the Will marked through D.W.2.
15. In the light of the defense raised by the Defendant No.1 with regard to the Will executed by R. Vasudevamurthy Rao, it is also necessary to look to the documents relied by the Defendants herein.
16. Ex.D1 is the affidavit secured under the RTI Act, filed by Defendant No. 1 and Defendant No. 2, stating that they have no objections for transfer of khata in the name of their mother, the Plaintiff herein, which reads as under :-
"ಸದರಿ ನಮ್ಮ ತಂದೆಯವರ ಮರಣಾನಂತರ ಸ್ವ ತ್ತಿ ನ
ಖಾತೆಯನ್ನು ನಮ್ಮ ತಾಯಿಯವರಾದ ಶ್ರ ೀಮತಿ ಚಂಪಾವತಿ
13
O.S.No.6366/2020
ರವರ ಹೆಸರಿಗೆ ಖಾತಾ ವರ್ಗಾವಣೆ ಮಾಡಿಸಿಕೊಳ್ಳ ಲು
ಅವಶ್ಯ ಕತೆ ಇರುವುದರಿಂದ, ಈ ಪ್ರ ಮಾಣ ಪತ್ರ ವನ್ನು
ಸಂಬಂಧಪಟ್ಟ ಕಛೇರಿಗೆ ಸಲ್ಲಿ ಸುತ್ತಿ ದ್ದೆ ೕವೆ."
17. Ex.D2 is the proceedings effected before the BBMP with regard to khata transfer secured under the RTI Act. Ex.D3 is also a Mahazar drawn in favour in respect of the Suit Schedule Property. Ex.D4 is the slip of acknowledgment issued by the BBMP, Ex.D5 is the again an affidavit secured under the RTI Act, with regard to the G-tree of R. Vasudevamurthy Rao, having wife by name Champavathi and two children, ie., two issues through their wedlock by name R. Vijay and Bharathi Amar. Ex.D6 is the Certified copy of Sale Deed secured under the RTI Act. Ex.D7 is the certified copy of khata standing in the name of the Plaintiff secured under the RTI Act. Ex.D8 is the unregistered Will, said to have been executed by R. Vasudevamurthy Rao. Ex.C1 is the signature and address of one Ramamurthy. Ex.C2 is the writing of D.W.4. Ex.C3 is one document relating to the address of R. Vijay, which is marked through DW.3.
18. This being the documentary evidence, it is necessary to look to the ocular evidence placed on record. The Plaintiff-PW.1, 14 O.S.No.6366/2020 who examined herself has stood the test of Cross-examination. The same is culled out for brevity as under :-
"It is true to suggest that as my husband was a member of BEML Society and was allotted a site. It is true to suggest that, Possession Certificate at Ex.P2 bears the name of my husband. Further since 2009 I am residing in Udupi. My husband was suffering from Parkinson disease since 2001 and he did not recover till his death."
19. Witness volunteered that it was my son who asked me to leave the home and go. It is false to suggest that after death of my husband I asked for partition of property to my son. Witness volunteers that, she is asking for return of her property.
20. Further she has deposed that, "It is true to suggest that in the year 2009 after going to Udupi, I have filed complaint against my husband and son before Rajarajeshwari Police Station. It is true to suggest that after death of my husband, my son has given NOC and got entered Khata in my name in the year 2018. It is true to suggest that after that, in the year 2019-2020 I have paid the tax. It is true to suggest that before filing this suit, along with my daughter, I had called my son to the office of my counsel."
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O.S.No.6366/2020
21. Further, certain crucial aspects are elicited in the ocular evidence of the Defendants ie., Defendant No. 1 who proposes his title to suit based upon the Will that is said to have been executed by his father while his father was undergoing or was suffering from Parkinson disease. The counsel for the Plaintiff has highlighted few important aspects, that needs a crucial application. The evidence of DW.1 may have less significance in the light of the evidence of the attesting witnesses to the Will that is said to have been executed by late R. Vasudevamurthy Rao the husband of the Plaintiff and father of Defendant No. 1 and 2 herein.
22. DW.3 in his Cross-examination has deposed that, "It is true to suggest that my sister-in-law ie., Plaintiff was working as a teacher. I don't know if the Plaintiff has spent her earnings for the purpose of construction of the house and also for the purpose of educating the children. It is true to suggest that R. Vasudevamurthy Rao had no ill will in respect of Plaintiff, his wife and his daughter Defendant No.2 herein. It is true to suggest that R. Vasudevamurthy Rao was suffering from Parkinson disease since 2003. It is true to suggest that since he was suffering from above disease he was unable to talk fluently and was stammering while talking. It is true to suggest that some 16 O.S.No.6366/2020 other person would have to give the medicine in his hands for consumption and as such, he was not capable independently to take medicines as well. It is true to suggest that R. Vasudevamurthy Rao had no mobile phone for communication. I don't know who has prepared the Will. But the Will was got typed by me from the Cyber center based upon the draft written in hand. I don't know where the manuscript is. I have given it to my brother after getting it typed. I don't know in whose handwriting the said manuscript was. I signed the Will on 31.03.2011. On the very said day the manuscript was given and I got it typed."
23. Certain provisional aspects found upon the Will, i.e. Ex.D8 is also culled out.
"It is true to suggest that the word 'Testator' found on the 3rd sheet is in my handwriting, the said portion is marked as Ex.P14. The said Will also finds a date written by hand as 31.03.2011, which is handwritten. I don't know among 3 of us who has written the date. One of us must have written the said date."
24. Further witness is also confronted to the first sheet. In the first sheet as well, the date as 31 &11 is as written. The same was written either by one of us among 3. Later on witness admits of having written by himself the same. The said portion is marked as Ex.P15. The said manuscript was given to me at 17 O.S.No.6366/2020 10.00 a.m. It is true to suggest that in 500 meter radius from the house of R. Vasudevamurthy Rao, Sub-Registrar's office is situated. Amongst myself and Rama murthy, I signed the Will initially i.e. first time. I have signed the said Will Ex.D8 between 11.45 and 12.30 a.m. My younger brother Rama murthy apart from signing the said document, and he has also written the Mysore address. After that I returned to my house around 02.30 to 3'O Clock. The Will was sealed by me and the witness further states that he asked to us to seal the Will, therefore we had sealed it. I had the said Will in my possession. As stated earlier that I don't know where the cover is. It must have fallen in my house only. I have not taken the fitness certificate of said R. Vasudevamurthy Rao. His son must have taken the said fitness certificate from the doctor, as R. Vasudevamurthy Rao was not well.
25. Further, DW.4 another attesting witness to the said Ex.D8 is also examined. The same is culled out hereunder :-
'Ex.P15 is in the handwriting of Mr. R. Vasudevamurthy Rao.Similarly Ex.P14 could be the handwriting of Mr. R. Vasudevamurthy Rao itself. The said Ex.P14, the word 'Testator' was not written in my presence, The writing 18 O.S.No.6366/2020 found as 31.03.2011 might have been written in the hand writing of Mr. R. Vasudevamurthy Rao itself. The said portion is marked as Ex.P13. I don't remember if Ex.P17 was written in my presence or not. It is true to suggest that said R. Vasudevamurthy Rao was suffering from Parkinson disease and his hands were shivering. I did not inform Vijay ie., Defendant No.1 of his father R. Vasudevamurthy Rao having executed a Will in his favour after the demise of R. Vasudevamurthy Rao. I don't know the matter of the said Will and the contents of the said will. I don't know as to who dictated the contentq of the said will. I don't know who has prepared the said Will. I knew that it was a Will, but I signed it and left there. Therefore, I don't know the remaining aspects. I don't know if out of their joint contribution the house in the first floor was put up."
26. On perusal of the entire evidence on record, no doubt D.W.1 has come out with a Will to say that, his father had executed a Will in his favour. But it is also crucial to note that the Will is surrounded with suspicious circumstances. The Learned Counsel for the Plaintiff has addressed the written arguments and has relied upon the citation reported 1958 SCC Online SC page 31 in the case of Venkatachala Iyengar Vs. Thimmajamma, wherein their Lordships have held that, 19 O.S.No.6366/2020 'The question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed By Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters."
"The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will."
27. In the instant case in hand, the propounder of the Will is the Defendant No. 1 herein. He has come out with two attesting witnesses to prove the said will. Both the witnesses have admitted to the fact that late Vasudevamurthy Rao was suffering 20 O.S.No.6366/2020 from Parkinson disease. DW.3 would also go to an extent of saying that, he was not capable of taking medicines independently and the medicines were to be given to him and after consumption of the medicines only after 1 or 2 hours he would become normal. So, in the instant case since on the said date there was a 'Shradda' being performed on the alleged date of the said Will, the said Vasudevamurthy Rao, soon after the 'Shradda' ceremony was over, is said to have executed the Will. The timing of performance of 'Shradda' is also was a moot question which was posed in the cross-examination to the D.W.3 and D.W. to test their veracity. However, the said test as though DW.3 & 4 have stated with regard to performance of 'Shradda' is concerned, the crucial aspect is that, the fact that said Vasudevamurthy Rao was suffering from Parkinson disease is the surrounding circumstances.
28. Above all, the Ex.P8 revolves and is surrounded with suspicious circumstances. Therefore, the burden is upon the Defendant No. 1 to dispel the suspicious circumstances that is surrounding the said Will, Ex.D8. On recitals and on bare perusal of the said Will itself goes to show that, it is a draft and the said Will has all the features of a draft rather than that of a 21 O.S.No.6366/2020 Will. The said Will does not have a title also. The said document that is Ex.D8 does not bear the title as the Will at least as seen in other documents and further the dates are incorporated subsequently i.e. 31 day of 2011. And it has also got a grammatical mistake as para 3. The said content is more or so like that of an Affidavit. The said Affidavit is also not typed on a stamp paper. The signature though it goes to show that the said Vasudevamurthy Rao was suffering from Parkinson disease, whether he said the signature found on Ex.D8 was obtained during the tenure that he was suffering from Parkinsons disease or the signature was obtained even prior to that would also have relevancy in this case. It is as seen from the oral evidence of DW.3 and DW.4 that his hands were shiverig. If a person is suffering from Parkinson disease, the signature as seen on Ex.D8 could not have been executed during the tenure of Parkinson disease. Therefore there is probability of this Affidavit or a Draft being obtained for some other purposes during the tenure when the Defendant's father ie., Vasudevamurthy Rao was not suffering from Parkinson disease and further the signature is also disputed. Therefore the burden was upon the Defendant to dispel the said suspicious circumstances. The Defendant having failed to establish and dispel all the suspicious 22 O.S.No.6366/2020 circumstances surrounding under the Will, the property as of now is jointly reflected in the names of both Plaintiff and Defendant No. 1 & 2 herein. The Defendants No. 1 and Defendant No. 2 have also given their no objection for getting the property transferred in the name of their mother, the Plaintiff herein. Therefore, in these circumstances once this fact is admitted by the Defendant No. 1, again going back by his statement does not call for an inference. Therefore, the Defendant has failed to establish the Will. Once the finding with regard to the Will is negatived, the Suit Schedule Property is to be termed as Joint Family Property.
29. But the issue in hand is with regard to the burden casted upon the Plaintiff to prove that the Suit Schedule Property is the property of herself and her husband Vasudevamurthy Rao. In this regard, the Plaintiff herself in her plaint averments has specifically raised the contention that the Suit Schedule Property was the Property purchased by her husband and that she was discharging the duty as a Teacher and that late R. Vasudevamurthy Rao was employed at BEML Factory and for construction of the house on the site, the Plaintiff and R. Vasudevamurthy Rao had jointly invested and spent their money 23 O.S.No.6366/2020 out of their employment is concerned, though no document is produced by the Plaintiff, ie., the Plaintiff has placed Ex.P1 to P19 documents, out of which, Ex.P1 to P13 are pertaining to the suit property. The fact that the Plaintiff was a teacher and that she is drawing pension is also admitted by the Defendants in their written statement. And further, it is also crucial to know that the Plaintiff is in possession of all the original documents. Though the Plaintiff is not residing in the Suit Schedule Property and she is residing at Udupi with her relative, the documents are in the possession of the Plaintiff herein.
30. Apart from this, there is one photostat copy, which is not marked, which is noted as Annexure-G, whereby along with the signature of R.Vasudevamurthy Rao, the signature of the Plaintiff is also seen. And further the said document at overleaf also bears the signature of both Champavathi 7 R.Vasudevamurthy Rao, wherein a sum of ₹ 6,00,000/- is availed by the said R.Vasudevamurthy Rao and Champavathi. And above all, the admitted document ie., the khata of the said property on the demise of said R.Vasudevamurthy Rao, is also standing in the name of Champavathi, the Plaintiff herein. And ExP5 & P6, the Khata Certificate and Khata Uthar also reflects 24 O.S.No.6366/2020 the name of the Plaintiff, Champavathi. So also Ex.P7. These photostat copies of the documents goes to show that, some amount of contribution is made by the Plaintiff herein in acquiring the Suit Schedule Property. Though no document is standing in her name to reflect the said contribution, but the photostat copies with regard to loan availed by State Bank of India is concerned, there is a document dated 16.09.2002 which bears the signature of both Plaintiff and late R. Vasudevamurthy Rao. This fact also probabalizes the fact that, Plaintiff had made certain contribution in acquiring the Suit Schedule Property and also to put up construction in the Suit Schedule Property to the tune of Rs.6,00,000/- as pleaded by the Plaintiff. Therefore, Issue No. 1 stands answered in the affirmative.
31. And further there is certain crucial admission given by D.W.1. "2002 ನೇ ಇಸವಿಯಲ್ಲಿ ನನ್ನ ತಂದೆ-ತಾಯಿಯವರು ಮನೆ ಕಟ್ಟಿ ಸಲು ಎಷ್ಟು ಹಣ ಖರ್ಚು ಆಗಿರುತ್ತ ದೆ ಎಂದರೆ ನನಗೆ ಹೇಳಲಾಗುವುದಿಲ್ಲ ." . Here, in this sentence there was a specific suggestion of contribution of amount or money by both the Plaintiff and her husband.
32. And further, 25 O.S.No.6366/2020 "ಸಾಕ್ಷಿ ಯು ಸ್ವ ತಃ ಹೇಳುತ್ತಾ ರೆ 2002-2003 ರಲ್ಲಿ ನನ್ನ ತಂದೆಯವರು ಉದ್ಯ ೋಗದಲ್ಲಿ ಇರಲಿಲ್ಲ ಎಂದು. ನನ್ನ ತಂದೆಯವರು ಬಿ.ಇ.ಎಂ.ಎಲ್. ನಲ್ಲಿ ಉದ್ಯ ೋಗ ಮಾಡುತ್ತಿ ದ್ದ ರು ಎಂದರೆ ಸರಿ. ನನ್ನ ತಂದೆಯವರಿಗೆ ಕೆಲಸ ಮಾಡಲು ಕಷ್ಟ ಆಗುತ್ತಿ ದೆ ಎಂಬುದಾಗಿ ಸ್ವ ಯಂ ನಿವೃತ್ತಿ ಹೊಂದಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಆದರೆ ನನ್ನ ತಂದೆಯವರು ಸ್ವ ಯಂ ನಿವೃತ್ತಿ ಹೊಂದಿರುವ ವಿಚಾರ ನಿಜ ಇರುತ್ತ ದೆ." Further, "ನನ್ನ ತಂಗಿ 2 ನೇ ಪ್ರ ತಿವಾದಿಯ ವಿವಾಹ 2001 ನೇ ಇಸವಿಯಲ್ಲಿ ಆಗಿರುತ್ತ ದೆ. ನನ್ನ ತಾಯಿಯವರು ಕೋಲಾರ ಜಿಲ್ಲೆ ಯ ಬಂಗಾರಪೇಟೆಯಲ್ಲಿ ಶಿಕ್ಷಕಿಯಾಗಿ ಕೆಲಸ ಮಾಡುತ್ತಿ ದ್ದ ರು ಎಂದರೆ ಸರಿ."
33. Further, "2003 ಇಸವಿಯಲ್ಲಿ ದಾವಾ ಸ್ವ ತ್ತಿ ನಲ್ಲಿ ಗೃಹಪ್ರ ವೇಶ ಕಾರ್ಯಕ್ರ ಮ ನಡೆದಿರುತ್ತ ದೆ ಎಂದರೆ ಸರಿ, ನನಗೆ 2019 ನೇ ಇಸವಿಯಲ್ಲಿ ವಿವಾಹವಾಗಿರುತ್ತ ದೆ. ನಾನು 2009 ನೇ ಇಸವಿಯಲ್ಲಿ ತನುಜ ಎಂಬುವವರನ್ನು ವಿವಾಹ ಆಗಿದ್ದೆ ನು ಎಂದರೆ ಸರಿ. ತದನಂತರ ನನ್ನ ಮತ್ತು ತನುಜಾ ನಡುವೆ ವಿವಾಹ ವಿಚ್ಛ ೇದನ ಆಯಿತು ಎಂದರೆ ಸರಿ."
34. All these averments goes to show that there was some amount of contribution made by the Plaintiff which fact the 26 O.S.No.6366/2020 Defendants also admit.
35. Further, "ದಾವಾ ಸ್ವ ತ್ತಿ ಗೆ ಸಂಬಂಧಪಟ್ಟ ಖಾತೆಯು ಬಿ.ಬಿ.ಎಂ.ಪಿ. ಕಛೇರಿಯಲ್ಲಿ ನನ್ನ ತಂದೆಯವರ ಹೆಸರಿಗೆ ಇತ್ತು ಎಂದರೆ ಸರಿ. ನನ್ನ ತಂದೆಯವರು ಮರಣ ಹೊಂದಿದ ನಂತರ ದಾವಾ ಸ್ವ ತ್ತಿ ನ ಖಾತೆಯನ್ನು ತನ್ನ ಹೆಸರಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡಿಕೊಡಬೇಕೆಂದು ನನ್ನ ತಾಯಿಯವರು ಬಿ.ಬಿ.ಎಂ.ಪಿ. ಕಛೇರಿಯಲ್ಲಿ ಅರ್ಜಿ ಸಲ್ಲಿ ಸಿದ್ದ ರು ಎಂದರೆ ಸರಿ. ಆ ಸಮಯಲ್ಲಿ ನಾನು ಮತ್ತು ನನ್ನ ತಂಗಿ 2 ನೆ ಪ್ರ ತಿವಾದಿ ಇಬ್ಬ ರೂ ಬಿ.ಬಿ.ಎಂ.ಪಿ. ಕಛೇರಿಗೆ ಒಂದು ಪ್ರ ಮಾಣ ಪತ್ರ ವನ್ನು ಸಲ್ಲಿ ಸಿದ್ದೆ ವು ಎಂದರೆ ಸರಿ. ನನಗೆ ಈಗ ತೋರಿಸುತ್ತಿ ರುವ ದೃಢೀಕೃತ ದಾಖಲೆಯು ನಾನು ಮತ್ತು 2 ನೇ ಪ್ರ ತಿವಾದಿ ಸಲ್ಲಿ ಸಿದ್ದ ಪ್ರ ಮಾಣ ಪತ್ರ ಆಗಿರುತ್ತ ದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ಹೌದು ಎನ್ನು ತ್ತಾ ರೆ. ಸಾಕ್ಷಿ ಯು ಸದರಿ ದಾಖಲೆಯನ್ನು ಒಪ್ಪಿ ಕೊಂಡಿದ್ದ ರಿಂದ ನಿಡಿ-1 ಎಂಬುದಾಗಿ ನಿಶಾನಿಸಲಾಯಿತು. ಸದರಿ ನಿಡಿ-1 ರಲ್ಲಿ ನಮ್ಮ ತಂದೆಯವರಾದ ಶ್ರ ೀ ಆರ್.ವಾಸುದೇವಮೂರ್ತಿ ರಾವ್ ರವರು 2:09.05.2018 ರಂದು ಮರಣ ಹೊಂದಿರುತ್ತಾ ರೆ, ಸದರಿ ನಮ್ಮ ತಂದೆಯವರ ಮರಣಾ ನಂರ ಅವರ ಪತ್ನಿ ಶ್ರ ೀಮತಿ ಚಂಪಾವತಿ ಮತ್ತು ಮಕ್ಕ ಳುಗಳಾದ ಆರ್. ವಿಜಯ್ ಹಾಗೂ ಭಾರತಿ ಅಮರ್ ಅದ ನಾವುಗಳು ವಾರಸುದಾರರಾಗಿರುತ್ತ ೇವೆ"-ಎಂಬುದಾಗಿ 27 O.S.No.6366/2020 ನಮೂದು ಇರುತ್ತ ದೆ ಎಂದರೆ ಸರಿ. ನಮ್ಮ ತಂದೆಯವರ ಮರಣಾ ನಂತರ ನಾನು, ವಾದಿ ಮತ್ತು 2 ನೇ ಪ್ರ ತಿವಾದಿ ದಾವಾ ಸ್ವ ತ್ತಿ ನ ವಾರಸುದಾರರಾಗಿರುತ್ತ ೇವೆ ಎಂದರೆ ಸರಿ. ನಮ್ಮ ತಂದೆಯವರ ಮರಣಾ ನಂತರ ದಾವಾ ಆಸ್ತಿ ಬಗ್ಗೆ ವಿಭಾಗ ಆಗಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. 2 ನೇ ಪ್ರ ತಿವಾದಿಗೆ ದಾವಾ ಸ್ವ ತ್ತಿ ನಲ್ಲಿ 3 ನೇ 1 ಭಾಗದ ಹಕ್ಕು ಇರುತ್ತ ದೆ ಎಂದರೆ ಸರಿ."
36. Thereby, these facts goes to show that when the transaction took place both the Defendant No. 1 and 2 voluntarily gave a consent for transfer of khata in the name of the Plaintiff herein and yet the Defendant at fag end of the suit has come out with a Will that is Ex.D8. Therefore, when he himself has admitted of the fact that there is no Will executed by his father and that they had no objections for the khata being transferred in the name of the Plaintiff herein, it is quite strange as to how the Ex.D8 came into existence at the fag end of the suit. Therefore on these grounds also, the Will and the suspicious circumstances surrounding around the Will is not described successfully by the Defendants. And when the Defendant has failed to establish the same, the probability of the case of the Plaintiff is more probable. And also the Plaintiff has placed sufficient materials to show that the said property on the 28 O.S.No.6366/2020 demise of her husband was mutated in her name with the consent of both Defendant No.1 and 2 herein, who had given NOC for transfer of khata. And also the Defendant has given certain crucial admissions of Plaintiff being working and in the joint contribution of Plaintiff and her husband R.Vasudevamurthy Rao, the house was constructed. Therefore Issue No.1 stands answered in affirmative.
37. Issue No.2 & 3 : Moving to the next issue that is whether the Plaintiff and Defendant No. 2 prove that they are entitled for 1/3rd share each by metes and bounds in the suit Property. In furtherance to my findings to Issue No. 1, the Defendant No. 1 who has raised a specific contention of existence of Will has failed to establish the Will upon which the Defendant No.1 claims his entitle in respect of the Suit Schedule Property. Whereby the Defendant No. 1 has denied the share of Plaintiff and the Defendant No. 2 herein. The Defendant No. 2 is admittedly the daughter of Plaintiff and late R.Vasudevamurthy Rao, who in turn has appeared and has filed her written statement seeking for a share in the Suit Schedule Property. She has also stood the test of cross-examination as DW.2. She has reiterated the written statement averments, admitting the claim 29 O.S.No.6366/2020 of the Plaintiff. In her cross-examination she has admitted of the fact that, her parents got constructed the said building for her. Since the dispute arose between her brother i.e. Defendant No.1 and his wife, her mother left the house. Thereafter, herself and her brother Defendant No. 1 used to look after her father. Even her brother's first wife also used to look after her father. The Defendant No. 2 has withstood the test of cross-examination and the fact that along with Defendant No.1, Defendant No. 2 has also executed an affidavit with NOC for transfer of khata in the name of her mother. Therefore this fact also goes to show that, the Plaintiff and the Defendant No.1 have categorically admitted the share the Defendant No. 2, who is none other than the daughter of R. Vasudevamurthy Rao and it is also admitted fact that there is no partition and division of the suit Property amongst the Plaintiff and the Defendant No. 1 and 2 as of now. Therefore on this ground, Issue No. 2 & 3 stands answered in affirmative.
38. Issue No. 4 : The Plaintiff has maintained the present suit for the relief of Partition & Separate Possession of her share to an extent of 1/3rd share and also to direct the Defendant to effect partition by metes and bounds and to put the Plaintiff in 30 O.S.No.6366/2020 separate possession of her 1/3rd share in the Suit Schedule Property. The Defendants 1 and 2 have tendered their appearance and have filed their written statement. Though the Defendant No. 2 admits the claim of the Plaintiff and also seeks her 1/3rd share in the Suit Schedule Property , the Defendant No.1 has however come up with a Will that is alleged to have been executed by his father. The said Will is produced by his paternal uncle, and through him the said Will is marked as Ex.D8. In furtherance of the discussion arrived to by me under Issue No.1, the Defendant has no doubt placed one document which according to the Defendant No.1 is a Will. But, it is crucial to note that, the alleged Will is said to have been executed by said R. Vasudevamurthy Rao, while he was suffering from Parkinson disease, The document as seen is said to have been got typed at the instance of the testator that is R. Vasudevamurthy Rao by D.W.3. The contents of the said document and the blank space so far as it relates to the date of execution of the said Will has also created certain suspicious circumstances to the fact that if really the testator had executed the said Will on 31.03.2011. It is also seen that, it is a draft however got typed by DW.3 and later on the contents are being filled by DW.3 as admitted by him and DW.4 so far as it relates 31 O.S.No.6366/2020 to the address of DW.4 is concerned and the date.
39. It is also crucial to note that, as this Will was executed as stated by Defendant No. 1 and his witnesses, as on 31.03.2011. It is crucial as to why both Defendant No.1 and 2 had executed an affidavit with NOC in favour of the Plaintiff stating that they had executed joint affidavit with regard to the transfer of khata in the name of the Plaintiff herein. And further based upon the NOC, the khata is mutated in the name of the Plaintiff and as stated by DW.3 the said Will that is Ex.D8 was not placed on record in a sealed cover. On the other hand the DW.3 had kept it in an open cover and in the open court he had placed it before the court and the same was received in evidence and marked as Ex.D8. As such the contention of Defendant No. 1 that his father had executed a Will only in his favour is not made out and therefore, the suspicious circumstances surrounding upon the Will is not successfully dispelled by DW.1. Therefore, in addition to the said findings, the Plaintiff, however has probabalized of the fact that she too had contributed for the welfare of her children as well as in construction of the house. Therefore, Plaintiff has probabalized her case of her entitlement in the suit schedule property to an extent of 1/3rd share. 32
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40. The Defendant No.2 has relied upon the provisions of Section 63 of Evidence Act, Section 68 of the Indian Succession Act and also relied on the citation reported in AIR 1959 SC 443 and AIR 2004 SCC 1772 in the case of Uma Devi Nambiar Vs. T.C. Sidhan, wherein their Lordships have held that, "Claim for succession - Application under S.192 in respect of Property left by deceased to be disposed of summarily - There can be some consideration of genuineness of Will - But it cannot be in conclusive and detailed manner."
41. However, the application is not filed under Section 192, but it is filed by way of a regular suit.
42. Further the Defendant No.2 has relied upon another citation reported in AIR 1959 SC 443, wherein their Lordships have held that, "Evidence Act, Section 67, 68, 45, 47 - Proof of Will - Onus of proof on propounder - Nature Appreciation of evidence - Duty of Court."
43. And further the counsel for the Plaintiff has relied upon the citation reported in (2021) 11 SCC 277, wherein their Lordships 33 O.S.No.6366/2020 have held that, "Family and Personal Laws - Will - Validity of Will - Proof and satisfaction of Court - Principles governing adjudicatory process concerning proof of Will - law summarized."
44. Further held, "Family and Personal Laws - Will - suspicious circumstances / Undue influence restraining making of Will/substance of Will if arouses suspicion - Though fishing enquiry is to be avoided while examining Will, but real and valid suspicion cannot be ignored - As the suspicious and unexplained circumstances in the present case remained unexplained, held, High Court was justified in not accepting alleged Will as genuine document."
45. In the case in hand as well, the Defendant No. 1 has failed to establish that the said Will is a genuine one executed by his father and moreover the Plaintiff has probabalized her case that on her self contribution as well the said Property was acquired. Further it is also crucial to note that it is not the case of the Defendant No.1, that the said Will was executed by his father and that suppressing the fact the NOC was got executed by the Plaintiff. On the other hand, the Defendant No.1 categorically 34 O.S.No.6366/2020 admits of the fact that Plaintiff had contributed to the well being of Defendant No.1 and 2 and also her role in contribution to the loan for construction of the house in Suit Schedule Property.
46. Apart from the same, the fact that Plaintiff had deserted the Defendant No.1, his father while the deceased was suffering from Parkinson disease is concerned, the Plaintiff has stated that, as the son of the Plaintiff had asked her to leave the house, she has left. The family discard could be the reason and also to maintain peace in the family, Plaintiff must have left the company of her husband and Defendant No.1 her son, which cannot be a ground for denial of her share in the Suit Schedule Property, that too when she has contributed for the construction of the house. In fact, it is her right. There is no reason why the Plaintiff's case should not be decreed. Thereby, I answer that the Plaintiff is entitled and I proceed to pass the following:
ORDER The Suit of the Plaintiff seeking the relief of Partition & Separate Possession to an extent of 1/3rd share in the Suit Schedule Property, is hereby decreed with costs.35
O.S.No.6366/2020 In terms of the same, Office is hereby directed to draw a Preliminary decree.
Further, in view of the directions of the Hon'ble Apex Court, office is also directed to register FDP proceedings.
(Dictated to the Stenographer G-1, computerized by her, corrected and then pronounced by me in the Open Court, on this the 4 th day of April, 2026) (A.M. NALINI KUMARI) C/c. XXXVIII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the Plaintiff's side:
PW.1 : Champavathi List of exhibits marked for the Plaintiff's side:
Ex.P.1 Sale Deed dated 6.7.1989
Ex.P.2 Possession Certificate
Ex.P.3 Khatha registration dated 22.3.2016
Ex.P.4 & 5 Khatha Certificates - 2 Nos.
Ex.P.6 Uttara Pathra
Ex.P.7 Khatha Extract
Ex.P8 Receipt
Ex.P.9 to 13 E-tax paid receipts
Ex.P.14 to 17 Relevant part of Ex.D8
Ex.P.18 Relevant part of Ex.C1
36
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Ex.P.19 Copy of Will
List of witnesses examined on behalf of Defendants' side:
DW.1 : R. Vijay DW.2 : Bharathi Amarnath DW.3 : Raghavendra Rao DW.4 : Ramamurthy
List of exhibits marked on behalf of the Defendants' side:
Ex.D.1 Affidavit secured under RTI
Ex.D.2 Certified copy of notes and order sheet - BBMP
Ex.D.3 Certified copy of spot mahazar
Ex.D.4 Certified copy of Acknowledgment slip
Ex.D.5 Certified copy of the Affidavit
Ex.D.6 Certified copy of Sale Deed dated 6.7.1989
Ex.D.7 Certified copy of Uttara Patra
Ex.D8 Original Will
Ex.D8(a to e) Signatures of DW.3 and DW.4
Ex.C.1 Address of Ramamurthy
Ex.C.2 & C3 Writings
(A.M. NALINI KUMARI)
C/c. XXXVIII Addl. City Civil & Sessions Judge, Bengaluru.