Bangalore District Court
N.Viswanath S/O Late Nanjaiah vs Dr.N.Yathindra on 16 July, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 16th Day of July 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Judge,Bangalore City.
ORIGINAL SUIT NO. 6011/2008
Plaintiffs:
1. N.Viswanath S/o late Nanjaiah, aged
about 64 years, #777/5, 'Sri Shaila', 3rd
Main road, 1st Cross, 2nd Stage, HAL Tilak
Nagar, Bangalore
2. Dr.N.Chandramouli, S/o late Nanjaiah,
aged about 62 years, No.39, 'Aruna', 2nd
Main, Vyalikaval, Bangalore
3. Smt.N. Uma Devi D/o late Nanjaiah, aged
about 57 years, No.595, 10th Cross,
Mahalakshmipuram, Bangalore.
[by Advocate Sri P.Srinivasa]
/ Versus /
Defendants:-
1. Dr.N.Yathindra, S/o late Nanjaiah, aged
60 years, No.33/1, Sri Shaila, 3rd Cross,
4th Block, Kumara Park West Extension,
Bangalore-560 020
2. Sri N.Chidambara Murthy S/o late
Nanjaiah, aged 52 years, No.33, Sri
Shaila, 3rd Cross, 4th Block, Kumara Park
West Extension, Bangalore-560 020
2 O.S.No.6011/2008
3. Smt.N.Jayashree D/o late Nanjaiah, aged
46 years, No.33/2, Sri Shaila, 3rd Cross,
4th Block, Kumara Park West Extension,
Bangalore-560 020
4. Sri N.Ravishankar, S/o late Nanjaiah,
aged 48 years, No.32, Sri Shaila, 3rd
Cross, 4th Block, Kumara Park West
Extension, Bangalore-560 020
5. Smt.N.Ambika, D/o late Nanjaiah, aged
55 years, No.32/1, Sri Shaila, 3rd Cross,
4th Block, Kumara Park West Extension,
Bangalore-560 020
6. N.Chandrika, D/o late Nanjaiah, aged 44
years, No.32/2, Sri Shaila, 3rd Cross, 4th
Block, Kumara Park West Extension,
Bangalore-560 020
[Defendant Nos.1,3,5 and 6 by advocate
Sri B.C.Seetharama Rao and Defendant
No.4 by advocate Sri Nanjunda Gowda]
:
Date of Institution of the suit 22/08/2008
Partition and
Nature of suit :
separate possession
Date of commencement of
: 17/11/2014
Evidence
Date on which the judgment is
: 16/07/2018
pronounced
Duration taken for disposal Years Months Days
:
09 10 24
JUDGMENT
This suit is filed by the Plaintiffs against the Defendants for partition and separate possession. 3 O.S.No.6011/2008
2. It is the case of the Plaintiffs that the plaintiffs and defendants are the children of one late Nanjaiah. Late Nanjaiah died intestate on 27.5.2004.
The plaintiffs further submit that the house property bearing No.32/33, 'Sri Shaila' situated at 3rd Cross, 4th block, Kumara Park West Extension, Bangalore-560 020, which is the suit schedule property is the self acquired property of late Nanjaiah. On the death of late Nanjaiah, succession opened on plaintiffs and defendants and they are entitled for 1/7th share each in the suit schedule property.
The plaintiffs further submit that the Plaintiffs and defendants are in joint possession of the suit schedule property. The defendants are residing in the suit schedule property. Since the accommodation available in the suit schedule property is not sufficient, the plaintiffs are residing in the address stated in the cause title. However the suit schedule property continues to be in joint possession of plaintiffs and defendants. 4 O.S.No.6011/2008
The plaintiffs further submit that the since November, 2006, the plaintiffs have been requesting the defendants to effect partition and divide the suit schedule property and to allot their legitimate share. But the defendants are evading partition. Hence the plaintiffs issued legal notice dt.2.1.2007 demanding the defendants for partition and separate possession of their legitimate share in the suit schedule property. The defendants have received the legal notice, but failed to comply with the demand made therein. Hence the plaintiffs are constrained to file this suit for partition and separate possession of their legitimate share in the suit schedule property.
The cause of action for filing of this suit arose on the date of death of late Nanjaiah, in November 2006 and on 2.1.2007 and the same is still subsisting. The suit schedule property is situated within the jurisdiction of this court and this court has jurisdiction to try this suit.
3. The defendants 1,3,5 and 6 together filed written statement. They submit that the suit 5 O.S.No.6011/2008 schedule property was an absolute property of late Nanjaiah and he has bequeathed the same to defendants 1 to 6 under Will dt.16.8.2002 which is registered as No.132/202-03 in the office of the Sub- Registrar, Gandinagar, Bengaluru. Again on 24.9.2003, said late Nanjaiah partially modified the Will and executed another Codicil. The same was followed by codicil dt.3.10.2003 while making slight modification of his Will by altering the allocation of the residential units among the beneficiaries of the Will. In the Codicil, he had referred to various investments, donations, gifts and assistance given to his sons, daughters and grand children. The defendants were given possession of their respective units of residential building during the life time of late Nanjaiah. The defendants have become absolute owners of their respective portions after death of their father. Under these circumstances the suit for partition is not maintainable.
The defendants 1,3,5 and 6 further submit that the plaintiffs are aware of each of the arrangements 6 O.S.No.6011/2008 made by late Nanjaiah from time to time. Immediately after the death of late Nanjaiah, the Advocate with whom the Will and Codicils had been deposited by the Testator were sent to each of the parties. The Fixed Deposit receipts which were standing in the name of late Nanjaiah were handed over by defendant No.1 to plaintiff No.1 for delivering them to the beneficiaries in terms of the arrangement made by their father. But the plaintiff No.1 kept all the fixed deposit receipts in his custody without giving them to the beneficiaries. He has been wrongfully withholding the fixed deposit receipts from June 2004. The defendant No.1 is holding the original of Codicil dt.24.9.2003.
The defendants 1,3,5 and 6 further submit that the plaintiffs 1 and 2 who are highly placed and well settled in life with the help of their father, failed to act as responsible brothers towards their younger sisters. The Defendant No.5 is a divorcee and Defendant No.6 is not married. The plaintiffs have dishonestly claimed their share in the suit schedule 7 O.S.No.6011/2008 property by suppressing that their father helped them to own houses and other properties during his life time.
The defendants 1,3,5 and 6 further submit that the plaintiffs are aware of the fact that each of the beneficiaries under the Will were put in possession of their respective units. Each of the defendants is paying tax separately to Bruhat Bengaluru Mahanagara Palike. Even katha is transferred by Bruhat Bengaluru Mahanagara Palike in the names of defendants 3,5 and 6.
The defendants 1,3,5 and 6 further submit that the defendants 1,3,5 and 6 denied the allegation made in para 5 of the plaint that the plaintiffs and defendants are in joint possession of the suit schedule property as false and further submitted that the defendants 1 to 6 were in possession of their respective residential units in the schedule property even during the life time of their father and thereafter they are enjoying those units separately as absolute owners in terms of the bequeath made by 8 O.S.No.6011/2008 their father. The plaintiffs are not in possession of the suit schedule property with the defendants on and after the date of death of their father. The 3rd plaintiff is unnecessarily involved in the present suit by the 1st plaintiff. The plaintiffs are living in the houses acquired by their father in the names of plaintiffs 1 and 2. The 3rd plaintiff is married to a respectable family and leading happier life.
The defendants 1,3,5 and 6 denied that the allegation made by the plaintiffs that they are continuing to be in joint possession of the suit schedule property from November 2006, as false. The legal notice issued by the plaintiffs dt.2.1.2007 was got replied by the defendant No.1.
The defendants 1,3, 5 and 6 further submitted that there is no cause of action for the suit and the alleged cause of action is false. The defendants have been living in different units of he schedule property not only after the death of late Nanjaiah,but they were also put in possession of their respective units by their father, during his life time. Hence the 9 O.S.No.6011/2008 plaintiffs are not entitled to value the suit by invoking Sec.35(2) of the Karnataka Court Fee & Suit Valuation Act and are liable to pay the ad volerem Court Fee on the market value of the suit schedule property.
The defendants 1,3,5 and 6 further submit that the Late Nanjaiah owned a Maruti Van No.CKQ-9108 which has been parked in the garage, which is bequeathed to defendant No.6. Late Nanjaiah, in the Will, stipulated that the said Car should be sold and the sale proceeds should be divided among all his children. Unfortunately the defendant No.2 wrongfully locked the garage and prevented the Van being sold to implement the Will of the father. He has not allowed the defendant No.6 to make use of the garage bequeathed to her to park the car owned by her.
The defendants 1,3,5 and 6 further submit that the present suit is filed by the plaintiffs 1 and 2 with the active collusion of defendants 2 and 4. The plaintiffs and defendants 2 and 4 have joined 10 O.S.No.6011/2008 together and filed O.S.No.4772/2004 against the defendants 1,3,5 and 6 by showing seven banks as defendants and have prayed for perpetual injunction restraining the banks from disbursing any amount to defendants 8 to 11 and the said suit is pending. The plaintiffs have filed the said suit only to prevent their sisters from utilizing the interest income on the deposits made by the father for the benefit of his children. On these grounds the defendants 1,3,5 and 6 prayed to dismiss the suit filed by the plaintiffs .
4. The 4th defendant filed written statement independently by contending that the suit filed by the plaintiffs is not maintainable in the eye of law or on facts. The suit is barred by limitation. The 4th defendant has denied the averments made in para 5 and 6 of the plaint as false. He further submitted that the parties to the suit are living separately and enjoying their shares as per the registered Will dt.16.8.2002 and Codicil will dt.24.9.2003, which were executed by late Nanjaiah.
11 O.S.No.6011/2008
In para 7 of the written statement, defendant No.4 submitted that the property which is mentioned in the Will dt.16.8.2002 in favour of defendant No.4 is undisputed. There was misunderstanding amongst three children of late Nanjaiah and hence late Nanjaiah made a codicil Will dt.24.9.2003 subsequent to Will dt.16.8.2002 and a confirmation was made by the testator late Nanjaiah as follows:-
"House No.32 occupied by Sri N.Ravishankar is allotted to him without the car shed attached to it in the western part of the house. This car shed is entirely meant for my car use and after me it should go to my second son Dr.N.Chandramouli, who is should run a polyclinic for the benefit of the inmates of Shri Shaila and also for the benefit of local public. There should be no hindrance to this allotment by any source'.
This clearly shows that the parties to the suit are separately enjoying their possession and their respective shares. Hence there is no joint possession of the suit schedule property. The defendant No.6 has filed a suit for declaration and injunction against 12 O.S.No.6011/2008 the defendant No.4 in respect of the garage, which is in permissive possession and enjoyment of defendant No.4 and he is parking his car.
Defendant No.4 further submits that there is no cause of action to the suit and the suit is barred by limitation. Hence defendant No.4 prayed this Court to dismiss the suit filed by the plaintiffs.
5. On the pleadings of the plaint and the written statement filed by the defendants No.1,3,5 and 6 and defendant No.4, my predecessor has framed the following six Issues on 11.12.2013:-
(1) Whether the plaintiffs prove that they are in joint possession of the schedule property?
(2) Whether the defendants prove that late V.Nanjaiah has bequeathed schedule property under Will dt.16.8.2002 and Codicil dt.24.9.2003?
(3) Whether the valuation of the suit is proper and Court Fee paid is sufficient?
(4) Whether the suit is barred by limitation?
(5) Whether the plaintiffs are entitled for the reliefs claimed?
(6) What Order or Decree?13 O.S.No.6011/2008
6. In this case, In support of plaintiffs' case,the Plaintiff No.2 adduced oral evidence by way of filing his sworn affidavit as Pw1 and in further chief examination of PW1, the documents produced by PW1 are got marked as Ex.P1 to P15. The plaintiff No.3 adduced her oral evidence as PW2 and in further chief examination of Pw2 no documents are marked through PW2. In the cross-examination of PW1, the document confronted to him is marked as Ex.D1. On the other hand the 1st defendant adduced his oral evidence as DW1 and in further chief examination of DW1, the documents produced by DW1 are marked as Ex.D1 to D8. Thereafter the case posted for arguments. After heard arguments on both side, the case was posted for judgment.
7. My findings on the above Issues are as follows:
Issue No.1 : In the Negative Issue No.2 : In the Affirmative Issue No.3:Already answered in the Affirmative by Order dt.3.4.2014. Hence does not arise for consideration.14 O.S.No.6011/2008
Issue No.4: In the Negative Issue No.5: In the Negative Issue No.6: As per final order, for the following:
REASONS Issue Nos.1 & 5 :
8. Before giving reasons for above Issues, it is just and proper to know the admitted facts in this case. One late Nanjaiah who is the main propositer of the family of plaintiffs and defendants, has died leaving behind him the plaintiffs and defendants who are his sons and daughters. There is no controversy regarding the relationship of the plaintiffs with the defendants and the same is admitted by the defendants in the written statement, filed by them.
9. It is the case of the plaintiffs that the house property bearing No.32/33, 'Sri Shaila' situated at 3rd Cross, 4th block, Kumara Park West Extension, Bangalore-560 020, which is the suit schedule property is the self acquired property of late Nanjaiah. On the death of late Nanjaiah, 15 O.S.No.6011/2008 plaintiffs and defendants succeeded to the schedule property and they are in joint possession and enjoyment over the suit schedule property. As per para 4 of the pleadings of the plaint, the defendants are residing in the suit schedule property and since the accommodation available in the suit schedule property is not sufficient, the plaintiffs are residing in the address stated in the cause title. However the suit schedule property continues to be in joint possession of plaintiffs and defendants since November, 2006. Thereafter the difference arose in between the plaintiffs and defendants and therefore the plaintiffs requested the defendants to effect partition and to allot their legitimate share. But the defendants are evading partition on one or the other grounds. Hence the plaintiffs issued legal notice dt.2.1.2007 demanding the defendants for partition and separate possession of their legitimate share in the suit schedule property.
10. So here the main contention of the plaintiffs is that late Nanjaiah died intestate, 16 O.S.No.6011/2008 therefore the suit schedule property is in joint possession and enjoyment of the plaintiffs and defendants. Therefore the suit schedule property is the joint family property of plaintiffs and defendants. 11. Here in order to prove Issue Nos.1 and 5 and also to prove whether actually the suit schedule property is the joint family property of plaintiffs and defendants, the Plaintiff No.2 adduced his oral evidence as PW1 and in further chief examination of PW1, the documents are got marked as Ex.P1 to P15.
12. Here, in the cross-examination of PW1, he admitted that Plaintiffs 1 and 2 had filed O.S.No.4772/2004 and the said suit was dismissed. PW1 admitted that he has deposed oral evidence in O.S.No.4772/2004 as PW2. The said deposition when confronted to PW1 is marked as Ex.D1. On perusing Ex.D1, goes to show that either PW1 or his brother plaintiff No.1 and defendants 1 and 2 and 4 have not at all contributed for construction of house in the suit schedule property. Here as per Ex.D1, at 17 O.S.No.6011/2008 page 7, he simply deposed that he does not know that his father has executed registered Will dt.16.8.2002. Further in the cross-examination of PW2 in O.S.No.4772/2004 as per Ex.D1, who is Plaintiff No.2 in this case, at page 9 he admitted that during the life time of late Nanjaiah he performed marriage of all his daughters. As per deposition in O.S.No.4772/2004 as per Ex.D1, the present PW1 who has adduced his oral evidence as PW2 in the said case, admitted that the suit schedule property is the self acquired property of his father late Nanjaiah and his father late Nanjaiah was having a sound financial capability and therefore his father has kept the excess amount as fixed deposit out of his savings in the salary in different banks in the names of his sons and daughters. PW1 in this case has admitted that no appeal is preferred on the dismissal of O.S.No.4772/2004. The certified copy of the said judgment is marked as Ex.D3.
13. Here in the cross-examination of PW1, he has neither refused nor admitted the Will executed 18 O.S.No.6011/2008 by his father dt.16.8.2002 as suggested by counsel for defendants 1,3,5 and 5 at page 6. But here in the cross-examination of PW1, he admitted that his father had purchased two landed properties each to an extent of 2 acres in the name of plaintiff No.1 and defendant No.1 and those two properties have been sold out during the life time of late Nanjaiah. But here no such Sale Deeds are produced by PW1 in order to know whether actually late Nanjaiah during his life time sold out two acres of land each stood in the name of plaintiff No.1 and defendant No.1. Further PW1 deposed at page 9 in his cross- examination that no katha has been changed as per the Will executed by late Nanjaiah which is marked as Ex.D5. But again PW1 deposed that he subsequently came to know as per the Will executed by late Nanjaiah, the sharers are in possession and enjoyment of their respective shares as allotted in the said Will. So here PW1 came to know the execution of the alleged Will as per Ex.D5 by his father late Nanjaiah, but here in the prayer column 19 O.S.No.6011/2008 of the plaint no such relief for declaration declaring that the said Will Ex.D5 alleged to has been executed by late Nanjaiah is not binding on the share of the plaintiffs or the same is declared to be null and void. Here even though PW1 knowing well in respect of the Will executed by late Nanjaiah as per Ex.D5, purposely deposing false evidence suppressing the real truth in respect of the Will executed by late Nanjaiah as per Ex.D5.
14. Now looking to the cross-examination of PW1 at page 10, goes to show that the defendant No.1, plaintiff No.1 and defendants 2 and 4 are residing in separate floors as per the allotment made in the registered Will executed by late Nanjaiah which is marked as Ex.D5. Because the suit schedule property is comprising of ground, first and second floors. So from the oral evidence of PW1, it goes to show that as on the date of filing of this suit and prior to it, the plaintiffs are not at all in joint possession and enjoyment of the suit schedule property since the suit schedule property has been 20 O.S.No.6011/2008 allotted to all the plaintiffs and defendants as per Ex.D5(registered Will).
15. Here plaintiff No.3 who is also one of the daughters of late Nanjaiah and sister of plaintiffs 1 and 2 and defendants adduced her oral evidence as PW2. On perusing the cross-examination of PW2 at page 6 by the counsel for defendants 1,3,5 and 6, she clearly and unequivocally admitted in her deposition which is reiterated in Kannada as under:-
£À£Àß vÀAzÉAiÀĪÀgÀÄ «¯ï£À°è §gÉzAÀ vÉ £À£Àß CtÚ vÀªÀÄäA¢gÀÄ ªÀÄvÀÄÛ CPÀÌ vÀAVAiÀÄgÀÄ CªÀgÀªÀgÀ »¸ÉìUÉ §AzÀ ¸ÀévÀÄÛUÀ¼À°è FUÀ ¸Áé¢üãÀzÀ°è EzÁÝgÉ CAzÀgÉ ¸Àj. CzÉà jÃw CªÀgÀªÀgÀ ºÉ¸ÀjUÉ ¥ÀævÉÃåPÀªÁzÀAvÀºÀ SÁvÀ ªÀÄvÀÄÛ PÀAzÁAiÀĪÁVzÉ CAzÀgÉ ¸Àj.
16. So this type of admissions in the cross- examination of PW2 who is none other the sister of Plaintiffs 1 and 2 and defendants, itself sufficient that all the plaintiffs and defendants are in separate possession and enjoyment in respect of the suit schedule property as per the shares allotted through the registered Will executed by late Nanjaiah which 21 O.S.No.6011/2008 is marked as Ex.D5 and what it goes to show that it has acted upon.
17. Here from the oral evidence of Pws.1 and 2, it goes to show that late Nanjaiah was working as Deputy Commissioner in Revenue department. So in the cross-examination of PWs.1 and 2 it clearly goes to show that till the date of death of late Nanjaiah, his health condition was good and he was in sound state of mind at the age of 87 years. So here the Will was executed in the year dt.16.8.2002 and some modification was made in the said original Will and codicil was executed by late Nanjaiah as per Ex.D6. Further in the cross-examination of PW2 at page 7, it clearly reveals that during the life time of late Nanjaiah he got constructed house out of the money earned by him. So from the oral evidence of PW1, goes to show that no any contribution was made either by plaintiffs 1 and 2 or by defendants 1,2 and 5 for construction of house in the suit schedule property. So therefore during the life time of late Nanjaiah in the year 2002, he made arrangement by 22 O.S.No.6011/2008 executing registered Will as per Ex.D5 allotting shares to his sons plaintiffs 1 and 2 and defendants 1 and 2 and also money and bank deposits in the names of his sons and daughters. Therefore in the cross-examination of PW2, she admitted in respect of the Will executed by late Nanjaiah as per Ex.D5 and also Codicil made as per Ex.D6.
18. Here no doubt Ex.P1 and P2 are standing in the name of late Nanjaiah, itself not sufficient to draw presumption that the plaintiffs are in joint possession and enjoyment of the suit schedule property. But the admissions in the cross- examination of PW1 and 2 and deposition of PW2(present Plaintiff No.1) in O.S.No.4772/2004, which is marked as Ex.D1, itself goes to show that late Nanjaiah has executed a Will dt.16.8.2002 and modification was made in the said Will as per codicil Ex.D6. So therefore as on the date of filing of this suit, the plaintiffs are not in joint possession and enjoyment of the suit schedule property along with defendants.
23 O.S.No.6011/2008
19. Here Ex.D3 which is the certified copy of Judgment and decree passed in O.S.No.9223/2006 is marked in the chief examination of DW1. Said suit was filed by defendant No.6 in this case as plaintiff against defendant No.4 as defendant No.1 in O.S.No.9223/2006. Looking to the said Judgment, it is observed regarding the Will executed by late Nanjaiah and also Codicil made. So therefore the said suit was decreed in respect of share allotted to present defendant No.6 as plaintiff in O.S.No.9223/2006. So against that suit, no appeal is preferred. So here as per Sec.33 of Indian Evidence Act, 1872, evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings the truth of the fact which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without 24 O.S.No.6011/2008 an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
20. So here the evidence given by Plaintiff No.1 who has deposed his evidence as PW2 in O.S.No.4772/2004 is relevant for the purpose of proving the true facts in later stage of the same judicial proceedings, because here in this case, PW1 is none other than the brother of plaintiffs No.1 and 3 and defendants. So his admissions in the deposition which is marked as Ex.D1 is relevant to be taken into consideration to prove that as on the date of filing of this suit the plaintiffs are not at all in joint possession and enjoyment of the suit schedule property. Further it is also admitted that the Will executed by late Nanjaiah as per Ex.D5 and Codicil made as per Ex.D6. Therefore from the oral evidence of PWs.1 and 2 and documentary evidence, it is proved that the plaintiffs are not at all in joint possession and enjoyment of the suit schedule 25 O.S.No.6011/2008 property even on the date of filing of this suit and prior to it .
21. In this case the defendants 1,3,5 and 6 together filed written statement. The defendant No.1 adduced his oral evidence as DW1 and in further chief examination of DW1, Ex.D2 to D6 are marked. The contention of defendants 1,3,5 and 6 is that late Nanjaiah was the absolute owner of suit schedule property and he has bequeathed the same to defendants 1 to 6, who are his children under Will and Codicil. In the cross-examination of DW1 goes to show that his father was living with his sister defendant No.6 in ground floor and also first floor. Out of two houses in the ground floor, the defendant No.4 is residing in one house and defendant No.2 is residing in another house. Out of two houses in first floor, sister of DW1 i.e., Defendant No.5 and in another house himself was residing. Out of two houses in second floor, in one house, his sister defendant No.6 and in another house defendant No.3 are residing. In the cross-examination of DW1, at 26 O.S.No.6011/2008 page 8 he deposed that his father, during his life time has given one site situated at Indira Nagar to his brother i.e., Plaintiff No.1. Further DW1 deposed that some amount was given to plaintiff No.3 while constructing house in the suit schedule property. Further in page 10, DW1 deposed that as per the Will executed by his father, all his three brothers and three sisters i.e., defendants are residing in the suit schedule property.
22. Here the main contention of the plaintiffs is that though the Will as per Ex.D7 is registered document, but the Codicil is not registered. But here when the defendants 1,3,5 and 6 have filed written statement regarding the execution of Will, the plaintiffs ought to have sought for the relief of cancellation of said Will and Codicil said to has been executed by late Nanjaiah in favour of defendants 1 to 6. But here looking to the prayer column of the plaint, the plaintiffs have sought for only their share, but not the relief of declaration declaring that the Will executed late Nanjaiah is null and void. 27 O.S.No.6011/2008 Therefore whatever the question put to DW1 in his cross-examination at page 10, would not at all useful to prove the case of the plaintiffs. Therefore the plaintiffs utterly failed to prove that the suit schedule property is in joint possession and enjoyment of them and defendants. Hence I answered Issue Nos.1 and 5 in the Negative.
ISSUE NO.2:
23. In this case the defendants 1,3,5 and 6 together filed written statement and the defendant No.4 filed separate written statement. It is the main contention of defendants 1,3,5 and 6, and defendant No.4 that the late Nanjaiah has bequeathed the suit schedule property to defendants 1 to 6 under Will dt.16.8.2002 and again on 24.9.2003, he partially modified the Will and executed another Codicil.
24. Here in order to prove Issue No.2, defendant No.1 adduced his oral evidence as DW1 by filing his sworn affidavit and in further chief examination of DW1, the documents Ex.D2 to D8 are marked. The DW1 in his cross-examination admitted 28 O.S.No.6011/2008 the relationship of plaintiffs and defendants, but contended that the suit filed by the plaintiffs for partition and separate possession is not at all maintainable since his father, during his life time, has executed registered Will in favour of all the defendants and also Codicil by modifying the Will. Said registered Will is marked as Ex.D7 and the signature of late Nanjaiah is marked as Ex.D7(a) to
(h) and signature of witness is marked as Ex.D7(i) and (j) and signature of late Nanjaiah on Codicil is marked as Ex.D8(a) and (b). In this case looking to the cross-examination of PW2 who is sister of plaintiffs 1 and 2 and defendants 1 to 6, she unequivocally admitted at page 6 with regard to execution of registered Will by her father late Nanjaiah on 16.8.2002 and also admitted that as per the Will, her brothers and sisters are residing separately in the rooms constructed in the suit schedule property, which has been bequeathed by her father. PW2 also admitted that on the basis of the registered Will, the katha has been effected as 29 O.S.No.6011/2008 per the houses bequeathed by her father late Nanjaiah by executing the Will as per Ex.D7. Ex.D2 is the certified copy of the judgment passed in O.S.No.9223/2006, wherein it is clearly discussed and upheld regarding execution of registered Will by late Nanjaiah as per Ex.D7. The said suit was filed by defendant No.6 as plaintiff against the present defendant No.4 as defendant. It is observed in the said judgment that defendant No.6 who was plaintiff in the said suit has been in possession and enjoyment of the house as per her share allotted in the suit schedule property in accordance with the registered Will executed by late Nanjaiah who is father of plaintiffs and defendants.
25. In the cross-examination of DW1 at page 10, the counsel for plaintiffs suggested that the signature found on Ex.D7 and the alleged signature on Codicial-Ex.D8 are not tallying and signature on Ex.D8 is not at all belongs to late Nanjaiah. If such being the doubt raised by plaintiffs with regard to alleged signature of late Nanjaiah on codicil which is 30 O.S.No.6011/2008 marked as Ex.D8, then the plaintiffs would have sought for expert's opinion in order to know whether the signature of late Nanjaiah on Ex.D8 is not at all belongs to him. Here in the cross-examination of DW1 at page 10 goes to show that the plaintiffs are admitting the execution of registered Will as per Ex.D7 by late Nanjaiah who is father of plaintiffs and defendants. Therefore PW2 in her cross-examination of unequivocally admitted regarding execution of registered Will as per Ex.D7. Here in order to prove the authenticity and genunity of alleged registered Will which is marked as per Ex.D7, it is better to peruse Ex.D1 which is the deposition of plaintiff No.1 in this case as PW2 in O.S.No.4772/2004. In the cross-examination of PW1, it is admitted regarding the evidence adduced by plaintiff No.1 as PW2 in O.S.4772/2004 which is marked as Ex.D1 in this case. So therefore the oral evidence of DW1 and admissions in the cross-examination of PW2, itself proved that DW1 relying on the oral evidence and 31 O.S.No.6011/2008 documentary evidence removed the suspicious circumstances that has been raised by the plaintiffs.
26. Now in order to prove the validity of the registered Will which is marked as Ex.D7, defendants 1,3,5 and 6 got examined one attesting witness by name D.R.Shankar Narayan as DW2. DW2 is attesting witness for Ex.D7 and also Ex.D8. Therefore in further chief examination of DW2, he identified his signature on Ex.D7 and also Ex.D8. In the cross-examination of DW2, goes to show that he is nowhere related to the family of plaintiffs and defendants, but DW2 deposed that he is well known late Nanjaiah and also his family affairs. Here in the cross-examination of DW2, he identified his signature on Ex.D8,the codicil so also identified the signature of late Nanjaiah on Ex.D7 and D8. He also deposed that he was present at the time of registration of will by late Nanjaiah in favour of defendants. So relying on the oral evidence of DW2 and DW1, defendants 1,3,4,5 and 6 proved that late Nanjaiah has executed registered Will in respect of 32 O.S.No.6011/2008 suit schedule property as per Ex.D7 and also Codicil as per Ex.D9. Hence defendants 1,3,4 to 6 proved Issue No.2. Accordingly I answered Issue No.2 in the affirmative.
ISSUE NO.3:
27. Here in the written statement filed by defendants 1,3,4 to 6, they took contention that the valuation made by the plaintiffs on the relief claimed is not proper and the Court Fee paid is insufficient. In this case Issue No.3 is already answered in the affirmative, by my predecessor by Order dt.3.4.2014. Hence again giving a finding on Issue No.3 does not arise for consideration.
ISSUE NO.4:
28. Here this suit is filed by the plaintiffs against defendants for partition and separate possession. In this case the plaintiffs and defendants are the coparceners and sons and daughters of late Nanjaiah. When the coparceners file a suit for partition and separate possession, the cause of action for filing of said suit is recurring cause of 33 O.S.No.6011/2008 action. Therefore any coparcener can file a suit for partition against any coparcener to get his or her legitimate share. The cause of action is recurring always till coparceners get legitimate share. So here perusing the cause of action narrated at para 7, goes to show that the legal notice got issued dt.2.1.2007 by the plaintiffs by demanding their share in the suit schedule property against the defendants. Therefore the suit filed by the plaintiffs for partition and separate possession in respect of suit schedule property against the defendants is not barred by limitation. Moreover there is no unequivocal evidence by the side of defendants to prove that the suit filed by the plaintiffs is barred under Limitation Act.Hence I answered Issue No.4 in the Negative.
ISSUE NO.6:
29. In view of the discussions and observations made in the above paras, I proceed to pass the following Order:-
34 O.S.No.6011/2008
ORDER Suit filed by the Plaintiffs against the Defendants is hereby dismissed.
Since the parties to the suit are relatives, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 16th day of July 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge,Bangalore City.
ANNEXURE
1. List of witnesses examined for plaintiff:
PW1 Dr.N.Chandramouli
PW2 Smt.Umadevi
2. List of documents exhibited for plaintiff :
Ex.P1 Khatha certificate
Ex.P2 Encumbrance certificate.
Ex.P3 Office copy of legal notice
Ex.P4 to P6 Six postal receipts
Ex.P7 to P13 Postal acknowledgements
Ex.P14 Certified copy of sale deed
Dt.06.11.1950
Ex.P15 Khatha certificate
35 O.S.No.6011/2008
3. List of witnesses examined for defendants:
DW1 Dr.N.Yathindra
DW2 D.R.Shankar Narayan
4. List of documents exhibited for defendants:
Ex.D1 Certified copy of deposition
of PW1 in O.S.4772/2004
Ex.D2 Judgment copy of O.S. No.9223/06
Ex.D3 Judgment copy of O.S. No.4772/04.
Ex.D4 Decree copy of O.S. no.4772/04.
Ex.D5 Certified copy of the Will dated
16.8.2002 (marked subject to
objection )
Ex.D6 Codicil dated 3.10.2003 to the Will
dated 16.8.2002.
Ex.D7 Original Registered Will.
Ex.D8 Copy of the codicil to will dated
16.8.2002.
Ex.D7(a to h) The signature on Ex.D7 of the
executant on each page is marked.
Ex.D7 (i & j) Signature of the witness on Ex.D7
Ex.D8 (a & b) Signature on codicil of the executant
XXXVIII Additional City Civil & Sessions Judge,Bangalore City.36 O.S.No.6011/2008