Bangalore District Court
In :- Smt. Surekha Devi W/O Late Sampath ... vs In :- 1) Oriental Bank Of Commerce on 17 December, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS.No.15743/2001 C/w OS.No.2731/2002
Dated this 17th day of December 2020
Plaintiff in :- Smt. Surekha Devi W/o late Sampath Singh
O.S.No. 15743/2001 aged about 60 years, R/o No.37, 8th Main
Road, Vasanthanagar West, Bangalore 52.
[
(Rep by Sri C.K.Sairam, R.Satish, V.R.Jayaram, Advocates)
V/S
Defendant in :- 1) Oriental Bank of Commerce,
O.S.No. 15743/2001 Sadashivanagar Branch, "Palace Corner"
No.209/1, Bellary Road,
Sadashivanagar, Bangalore-79.
2) Dinesh Singh S/o Late Sampath Singh,
Bohra, R/o. No.37/1, I floor, 8th Main Road,
Vasanthnagar West, Bangalore-560 052.
[
(Defendant No.1 by Sri G.N. Advocate
Defendant No.2 by Sri A.R., Advocate) \
Plaintiff in :- 1. Dinesh Singh S/o Late Sampath Singh Bohra,
O.S.No.2731/2002 Aged about 41 years, R/o. No.37/1,
I floor, 8th Main, Vasanthnagar West,
Bangalore-560 052.
(Rep by Suresh S.Lokre)
V/S
Defendant in 1. Smt. Surekha Devi W/o Late Sampath Singh
O.S.No. 2731/2002 Bohra, aged about 61 years, resident of No.37,
8th Main Road, Vasanthanagar West,
Bangalore 52.
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Common Judgment C /w O.S.No.2731/2002
2. Lokesh Singh S/o Late Sampath Singh Bohra,
aged abut 37 years, R/at No.173, 1st cross,
8th Main, Vasanthnagar West, Bangalore 52.
3. Rajesh Singh S/o Late Sampath Singh Bohra,
aged aboutt 34 years, R/at No.173, 1st cross,
8th Main, Vasanthnagar West, Bangalore 52.
4. Smt. Sushmadevi W/o. Praveen Chajjad,
aged about 40 years, R/at No.31, 'A' block,
6th street, Annanagar, Chennai 600 012.
5. Smt. Anupama alias Anu Lalvani
W/o Anil lalwani, aged about 33 years,
R/at No.9/2-167, Regimenal Bazaar,
Secunderabad 500 025, Andhrapradesh
6. M/s. Oriental Bank of Commerce,
Sadashivanaggar branch Palace Corner,
No.209/1, Bellary Road, Sadashivanagar,
Bangalore 560 079,
represented by its Manager.
(7. Sri Shivaprasad Bommisetty
S/o Chinna Kotiah Bommisetty,
aged about 3 years, R/at No.2382,
HAL 3rd stage, Bangalore.)
[deleted on 04/07/2017]
(Rep by D1 to D3 by Sri C.K.Sairam, R.Satish, V.R.Jayaram Advocates,
D 4 & 5-Sri.M.L.Dayanadakumar Advocate,
D 6 - Sri.Prashant.N.Hegde Advocate)
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Common Judgment C /w O.S.No.2731/2002
OS.No.15743/2001 OS.No.2731/2002
Date of Institution of the
18/06/2001 18/04/2002
suit
Nature of the
(Suit or pro-note, suit for Partition and separate
Mandatory Injunction
declaration and possession, possession
suit for injunction, etc.)
Date of the commencement
of 06/10/2007 05/02/2005
recording of the Evidence
Date on which the Judgment
17/12/2020 17/12/2020
was pronounced.
Years Months Days Years Months Days
Total duration 19 05 28 18 07 28
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
:COMMON JUDGMENT:
The plaintiff Surekha Devi in O.S.No.15743/2001 filed suit
against the defendants for mandatory injunction.
The plaintiff Dinesh Singh in OS.No.2731/2002 filed suit
against defendants for , partition and separate possession.
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2) The brief facts of plaint averments in O.S.No. 15743/2001
is as under:
The plaintiff submits that she is widow of late Sampath Singh,
who died testate in Bangalore on 18/11/2000. During life time her
husband, he had made deposits under certificates of deposit bearing
No.150254289 dated 29/08/2000 and No.150254293 dated 09/09/2000
and the maturity value of which as on 29/11/2000 and on 11/12/2000
was Rs.7,00,000/- and Rs.8,00,000/- respectively. The deceased had
nominated her to receive the aforesaid matured amounts in the event of
his death prior to the maturity dates and accordingly the plaintiff is
shown as nominee in the defendant's records pertaining to the above
two deposit certificates and as per letter dated 10/09/2000 to her
husband there is confirmation as to holding of deposits and the plaintiff
being registered as nominee under Nos.2702 and 2792. That her
husband died on 18/11/2000 prior to the maturities of the two
certificates on 29/11/2000 and 11/12/2000. After his death she is the
sole nominee became legally entitle to receive from the defendant the
maturity values amounting to Rs.7,00,000/- after 29/11/2000 and
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Rs.8,00,000/- after 11/12/2000, as the person being nominated by the
depositor for the amounts covered by the two deposit certificates
totaling in Rs.15,00,000/-. Accordingly claim was made on the
defendant by letter dated 07/12/2000. But the defendant sent reply
dated 20/12/2000 stating that "We would be giving a value date in
respect of the renewal of matured CD and in the form of a FD in your
name as per the prevalent applicable interest rates". Having thus
committed to converting the maturity value of the two deposit
certificates into fixed deposit in the name of plaintiff, even though she
was entitle to receive the entire amount of Rs.15,00,000/- in cash from
the defendant. The letter sent to her on 23/12/2000 accompanied with
mail received from its corporate office stating that "In continuation of
our CC Mail dated 19/12/2000 you are advised to inform Surekha Devi
to obtain Probate/ Letters of Administration from the competent court
of authority as the nomination facility is not extendable to certificate of
deposits as per the opinion of our Advocate S. Ravi, a copy of the
mailed separately". The opinion of the bank's legal adviser refers also
to the registered WILL dated 01/07/2000 of her husband, under which
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she was constituted as the residuary legatee, meaning thereby her being
entitled to the total sum covered by the two deposit certificates. That
after having accepted she as the nominee and registered her as such
vide letter dated 10/09/2000 addressed to the depositor by the
defendant at para No.2 of Bank advocate letter reads "Mr. Sampath
Singh Bohra has since died. Though Sampath Singh has availed
nomination facility, the same is not accepted by the bank with respect
to certificates of deposits" In the face of the letter of the defendant
dated 10/09/2000 addressed to the depositor informing him of
registration of plaintiff as the nominee the registration numbers being
2702 and 2792 clear case of estoppel against the defendant preventing
it from pleading that nomination is not accepted with respect to
certificates of deposited. Solely on acceptance of her nomination and
she being registered as the nominee, the plaintiff is entitle for entire
maturity amounts. However in addition being the residual legatee under
the registered will dated 01/07/2000, she will be entitle to receive the
total maturity amount covered by the two deposit certificates. This was
also brought to the notice of the defendant. But the additional claim
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under WILL is also ignored vide paras No.5 and 6 of the advocate
opinion dated 20/12/2000 that "The intention of Mr. Sampath Singh
Bohra as to the residual estate is clearly expressed in para 19 of his
WILL. He says that all movables or immovables left out, or that he
may subsequently acquire shall belong to his wife Surekhadevi, after
his life Surekha Devi is entitle to inherit the proceeds of the certificate
of deposits. That considering the largeness of the amount involved, it
may be advisable to call upon Surekhadevi to obtain probate/letter of
administration before settling the claims"
3) The plaintiff further submits that nomination perse would suffice
for payment of matured amount to the nominee. She cannot be
expected to spend time, energy and money for securing probate / letters
of administration. Further the executant of the WILL as well as the
residual legatees being both Hindus, there is no legal compulsion for
securing probate. The "largeness of the amount" is not the criteria for
demanding probate / letters of Administration from a nominee. There is
no legal compulsion to produce the same and the nomination perse and
in addition her being a residual legatee under her husband's registered
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WILL dated 01/07/2000 should put an end to all quiblings, not at all
reasonable or lawful, on the part of the defendant. For all the above
reasons the legal notice dated 07/04/2001 was served on the defendant
by RPAD calling upon it to settle her claim as detailed therein within
15 days from the date of receipt of notice by it. The defendant not
replied to the notice inspite of lapse of more than two months. The
cause of action for the suit arose on 18/11/2000 date of death of
plaintiff's husband and holder of certificates of deposit with the
defendant and on 29/11/2000 and on 11/12/2000 the dates on which
the deposits matured and subsequently. The plaintiff in
OS.No.15743/2001 prays to decree the suit of mandatory injunction
against the defendant directing the defendant to enforce and implement
the nomination registered in her favour with it at No.2702 and 2792
vide its letter dated 10/09/2000 in relation to deposit certificates
No.1502454289 and 150254293 dated 29/08/2000 and 09/09/2000
respectively of which she is the nominee. The plaintiff prays to award
costs of the suit.
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4) The defendant No.1 filed written statement submitting that death
of husband of plaintiff Sampath Singh in testate at Bangalore is
undisputed and the plaintiff has been nominated as nominee is true. The
plaintiff contention that she is only person legally entitle to receive the
maturity value is incorrect having regard to the nature of the deposit
namely 'Certificate of Deposit' unlike in Fixed Deposit. The certificate
of Deposit is negotiable and therefore the facility of nominee becomes
redundant in the case of certificate of deposit. The defendant No.1
submits that the Manager has acknowledged the receipt of original
certificate and has only written a letter referred to at para No.5 of the
plaint. The defendant No.1 admits averments made in para 6 of the
plaint as correct that Head Office after consulting the advocate of the
defendant has sent the 'Mail'. In respect of contention of the plaintiff
that she was registered as nominee would not change the position of the
plaintiff to any extent, the defendant No.1 submits that any registration
made against the Rules will not ensure to the benefit of the plaintiff.
There cannot be estoppel against law. The defendant No.1 denied the
averments made in para No.8 of the plaint stating that nomination
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Common Judgment C /w O.S.No.2731/2002
facility is not available in compulsory deposits. The defendant No.1 has
never questioned the validity or otherwise of the terms of the WILL,
what all it wanted the plaintiff was to obtain and produce probate of the
WILL of her husband. The defendant No.1 submits that plaintiff is
required to obtain probate/letters of administration only for the reason
that the amount involved in the deposits is huge and also other legal
heirs of the testator approached the defendant and started disputing the
rights and claims of the plaintiff. In such circumstances defendant No.1
bank with an intention to avoid itself getting entangled in future in any
legal disputes, justifiably and also appropriately regarded the plaintiff
to obtain a probate for the WILL and the defendant No.1 willing to
abide by the directions of the court. The defendant No.1 submits that
the defendant bank received legal notice and after plaintiff approached
the defendant bank in person she had been appraised that she has to
obtain probate/ letters of administration, but no formal reply was sent.
There is no cause of action for the suit.
5) The defendant No.1 further submits that apart from plaintiff other
heirs of Sampath Singh approached their Bank and requested not to
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settle the claim in favour of the plaintiff as they are proposing to
initiate suitable legal proceedings challenging her rights and claim. In
view of disputes among the legal heirs of late Sampath Singh and also
their rival claims, defendant No.1 being banker advised the plaintiff to
obtain Probate from competent court with regard to the WILL of late
Sampath Singh. The defendant No.1 submits that there is no foundation
in claim of plaintiff. The defendant No.1 prays to dismiss the suit of
plaintiff with costs.
6) The defendant No.2 filed written statement. The defendant No.2
admits that plaintiff is the widow of late Sampath Singh and he passed
away on 18/11/2000. He further admits that late Sampath Singh is his
father. He had deposited Rs.15,00,000/- in the defendant No.1 bank
under two Negotiable Instruments No.150254289 dated 29/08/2000
and No.150254293 dated 09/09/2000. The plaintiff has suppressed
material particulars that these two deposits were made into the
defendant No.1 bank under Negotiable Instruments and the plaintiff is
in custody of these two original documents. The defendant No.2 denied
the averments made in para No.3 of the plaint that the deceased
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nominated the plaintiff to receive the aforesaid matured amounts in the
event of his death prior to the maturity dates and accordingly the
plaintiff is shown as nominee pertaining to the above two deposit
certificates and as per letter dated 10/09/2000 to her husband and there
is confirmation as to holding of deposits and that the plaintiff being so
called registered as nominee under Nos.2702 and 2792 are all false.
The question of nominee does not arise in the case of Negotiable
Instruments.
7) The defendant No.2 denied the averments made in plaint para
No.4 that consequent to death, on maturity the plaintiff has become
sole nominee and became legally entitled to receive from the defendant
No.1 the maturity values amounting to Rs.7,00,000/-, after 29/11/2000
and Rs.8,00,000/- after 11/12/2000 without asking any questions. The
plaintiff is not entitle to receive the amounts covered by the aforesaid
two Negotiable Instruments. Any claim made by her on the defendant
No.1 for the payment of entire amounts of Rs.15,00,000/- is untenable.
The plaintiff alone is not entitle to the said amounts in deposit with the
defendant No.1 bank. It is not proper on the part of the plaintiff to act
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hastily behind the back of this defendant and others. The defendant
No.2 denied that the defendant No.1 has committed to release the entire
amounts of Rs.15,00,000/- to the plaintiff herself. The defendant No.1
has no power or authority to do so. The defendant No.1 bank has to
exercise utmost caution in admitting the claims of this nature. The bank
has no manner of right to make such commitments. The defendant No.2
denied as false that the bank has made any such suggestions or
commitments. The amount is big amount as Rs.15,00,000/-. The
plaintiff is an aged person and her requirements are being taken care of
by her sons including this defendant from time to time. She does not
need such heavy sum as Rs.15,00,000/- all by herself. The defendant
No.2 further denied averments of plaint at para No.6 and submits that
the bank has not committed to convert the maturity value of the two
deposits into fixed deposit in the name o he plaintiff. The bank is bound
to enquire and act in a manner acceptable to all claimants. If they have
really made any commitment, temporary injunction shows that the
plaintiff has got them to do so. This shows that both have colluded. The
defendant No.2 further denied the averment that the plaintiff was entitle
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to receive the entire amount of Rs.15,00,000/- in cash from the bank.
The defendant No.2 submits that the plaintiff has simply made a whole
mess of the entire episode without consulting this defendant who is
eldest son of late Sampath Singh. She perhaps wanted to hastily do all
acts and get all the sums for herself. That he is son of plaintiff and
plaintiff is after all residing in the same building, she was bound to
consult at him before venturing into these exercises, in any case the
reply of the bank is untenable. If all the members of the family consent
the bank is bound to lease the entire amount, she is alone not entitle to
receive the amounts under the two instruments.
8) The defendant No.2 denied averments of plaint para No.7 in
respect of WILL alleged to have been executed by his father on
01/07/2000 and denied existence of such WILL. The alleged WILL has
not been the light of the day so far. There is no question of the plaintiff
being the residuary legatee under the alleged legatee. She cannot
approbate and reprobate. At one stage she claims to be the nominee for
the two deposits and now she claims as a residuary legatee, which is
false. The plaintiff is not entitle to receive the entire sum covered by
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Common Judgment C /w O.S.No.2731/2002
the two instruments all for herself. The word 'residuary' does not stretch
to a large sum of Rs.15,00,000/-. His father never intended to will away
such big amount in favour of woman who does not require any money
whatsoever. He has been with his father all along and he know his
mind. It is false that the plaintiff has been accepted and registered as
nominee. There is no question of plaintiff being nominee to receive
amounts under the two negotiable instruments. The question of
nomination does not arise under two Negotiable Instruments. The bank
has correctly stated that there is no question of any nomination for two
instruments in question.
9) The defendant No.2 further submits that in respect of averments
made at para No.8 of the plaint that solely on acceptance of her
nomination and she being so called registered as the nominee, the
plaintiff without any so called any demur entitled to be paid the entire
maturity amounts to which she was so called nominated by her husband
and which nomination was so called accepted and registered in her
name are false and untenable. The bank has clearly equivocally stated
that the amount is large enough and by no stretch of imagination the
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meaning of 'residuary' can be stretched to as large sum as
Rs.15,00,000/-. The nomination perse would suffice or payment of
mature amount to the nominee are untenable and denied. The question
of securing probate / deeds of administration also does not arise. The
nomination perse and in addition her being also called residual legatee
under the alleged will should put an end to all quiblings, not at all
reasonable or lawful on the part of the bank and the defendant denied
the same as false. The defendant No.2 submits that the bank has acted
correctly in not releasing the large sums to the plaintiff all for herself.
The cause of action is imaginary. The bank is bound to release the
deposit amounts, The cause of action does not survive only upon the
plaintiff. There are other claimants also, hence the suit filed by the
plaintiff in the present form is not maintainable. The plaintiff cannot
invoke the nomination when there is none. She is not entitle to the
relief of mandatory injunction. No nomination is valid in the case of
Negotiable instruments. The defendant No.2 is the eldest son of the
plaintiff and late Sampath Singh. After the death of Sampath Singh,
this defendant has become Kartha of the family. The defendant No.2 is
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entitle to get entire sum of Rs.15,00,000/- under two negotiable
instruments. He restricts his claim to the share that may determine by
this court after taking into consideration all aspects of the case. The
plaintiff is guilty of suppresio vary and suggestio falsi.
10) The defendant No.2 further submits that the defendant No.1
bank has to be directed by this court to get the consent of all the
claimants particularly his consent. That he has filed suit in
OS.No.2731/2002 against the plaintiff and others for partition and
separate possession of his share in the immovable properties and also
for a share in the sum of Rs.15,00,000/- which is the subject matter of
this suit. The present suit does not survive. The defendant No.2 prays to
dismiss the suit in O.S.No.15743//2001 with costs.
11) The plaintiff has filed her rejoinder to the written statement of
defendants stating that she is sole and only nominee accepted by the
defendant No.1 and registered as such by defendant No.1 in its records,
hence responsible and liable to pay deposited amount to her. It is no
concern of the bank whether anybody else has any interest or stake in
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the deposit and even assuming it to be so, it is for the latter to stake
claim to it after the defendant No.1 has discharged its liability to the
nominee and the nominee has received the amount from it. The
defendant is holding the sum of Rs.15,00,000/- and earning huge
returns on it without paying anything even by way of interest to the
plaintiff which works out to nearly 500/- per day. The defendant is
making unsustainable and untenable distinction between 'certificate of
deposit ' and 'fixed deposit' only to deprive her of the amount to which
she is lawfully entitle and to hold the same as long as possible and earn
out of its investment. In view of admission therein of receipt of the
original certificates by the defendant and letter written to the plaintiff
on 20/12/2000 as extracted and referred to in para No.5 of the plaint the
defendant is bound to make payment to her.
12) The plaintiff further submit that the alleged rule of the bank
against nomination which according to the defendant itself violated is
not part of any statue or law and hence the plea of estoppel does not
operate against it, which is legally unsustainable. The alleged rule of
the bank is neither statue nor law. No such alleged rule was bought to
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the notice of the depositor at the time of making deposit. The WILL is
genuine, but she is basing her claim exclusively as registered nominee
and reference to the WIIL in the plaint is only collateral and of little
consequence and the defendant cannot compel the plaintiff to obtain
letters of administration/probate when her relief against the defendant
is not based on the WILL, which even otherwise, requires no probate as
plaintiff is Hindu. It is false that she was called upon to obtain letter of
administration/ probate and that therefore no reply was sent to her legal
notice, because the defendant had no defence to her claim and wanted
to avoid putting anything in writing and retain the amount payable to
her as long as possible. The plaintiff prays to reject the written
statement filed by defendants and decree the suit filed by her.
13) The brief facts of plaint averments in OS.No.2731/2002 is as
under:
The plaintiff submits that he and the defendants No.1 to 5 are
legal heirs of late Sampath Singh Bohra, who died on 18/11/2000 at
Bangalore and they are only legal heirs and succeeded to the estate of
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the late Sampath Singh Bohra in respect of the schedule mentioned
properties. He is the eldest son, defendant No.1 is wife and defendants
No.2 to 5 are children of late Sampath Singh Bohra. The defendant
No.6 is the Bank in which the his father has deposited Rs.15,00,000/-
under Negotiable Certificate of deposit. He is seeking for interim relief
against the Bank not to pay the amount to the defendants alone. That
late Sampath Singh Bohra hailed from Bilara of Jodhpur District in the
State of Rajasthan and after coming to Bangalore, he married defendant
No.1 at Thirupathi in the year 1960. That late Sampath Singh Bohra
inherited only an ancestral house situated at Bilara in Jodhapur District
in the state of Rajasthan and except that property there is no other
property belonged to Sampath Singh. The said house is under lock and
there is no income from the said property. That after coming to
Bangalore his father started an Auto Finance Business and out of said
business, his father earned lot of immovable and movable properties.
14) The plaintiff submits he is carrying on the business of Auto
Finance and defendants No.2 and 3 are also carrying on own business
of Auto Finance under Bohra Finance Pvt., Ltd., and earning their
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livelihood. Even defendant No.1 is carrying on Auto Finance Business
under the name and style of Surekhadevi Financier Automotive and has
got earnings of her own. The defendants No.4 and 5 are daughters of
late Sampath Singh Bohra and they are married and living with their
respective husbands. The marriage of daughters was performed by his
father by taking his help. Earlier he and defendants No.1 to 5 were
residing with late Sampath Singh Bohra at No.104, Railway Parallel
Road, Kumara Park West, Bangalore, which was a rented house. That
he married in the year 1989 and thereafter his wife and defendant No.1
had no good relationship, hence defendant No.1 started insisting his
father send him out of the house. Hence in the year 1992 he shifted to
rented premises at Malleshwaram. In the year 1992 his father
purchased the property bearing Site No.155 measuring 40 x 60 at 8 th
Main Road, Vasantha Nagar West Extension Bangalore 560052 with
constructed building thereon. The building consists of ground floor and
first floor with two car garage on the right and left side of the building.
The ground floor was purchased by his father in the name of defendant
No.1 for valuable consideration of Rs.6,00,000/- on 22/08/1992.
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However the entire consideration was paid by the father alone i.e.
Schedule 1-A and another property bearing No.1, 7 th cross, 8th Main
Road, Malleshwaram, Bangalore-3 measuring 3000 Sq. Ft., i.e.
Schedule 1-B purchased by his father in the name of defendant No.1.
These two properties were given to her by his father for just getting
income for her needs only and to live with dignity and pride without
seeking help from others. But she is not the absolute owner of these
properties. The consideration for both the properties was paid by his
father. She cannot deal with these properties in any manner whatsoever.
The first floor portion of the property purchased on 11/11/1992 as
described in the Schedule Item No.I.
15) The plaintiff further submits that in fact the defendant No.1 was
not in good terms even with her husband late Sampath Singh Bohra.
That his father purchased the ground floor of the Suit Schedule Item
No.1 property in the name of defendant No.1 and also with view to
provide income for her and also provide a capital for her to start her
own Auto Finance Business and thus the defendant No.1 has started an
Auto Finance Business in the name and style "Surekhadevi Financier
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Automotive". The plaintiff further submits that defendants No.1 to 3
are totally non co-operative and always quarreling with the father of the
plaintiff for money. To maintain the dignity of the family, the father of
the plaintiff made provision for income to the defendants No.1 to 3 by
providing them necessary capital to start their own business. The tenant
who had occupied the ground floor of the suit schedule Item No.1
property vacated the same in the year 1993. Till then the father of the
plaintiff was carrying on the business since the first floor of house i.e.
door No.37/1 since there was no separate premises available, even the
defendants No.1 to 3 had also carried their respective business in the
suit schedule item No.1 property. The ground floor portion below the
Suit Schedule Item No.1 was occupied by the tenant and suit schedule
item No.1 property was in his possession and his father and defendants
No.1 to 3 were carrying on business in the Item No.1. After the ground
floor was vacated late Sampath Singh Bohra shifted part of the business
to the ground floor. The defendants No.1 to 3 were always in inimical
towards him and also harassing his father for money. The defendants
No.1 to 3 were not tolerating even he has talk with his father. The
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defendant No.4 got married in the year 1995 and thereafter difference
between Sampath Singh Bohra on one hand and defendants No.1 to 3
on the other increased leading to a total breakdown of peace and
tranquility in the family. Late Sampath Singh Bohra was suffering from
diabetes and Hypertension and due to the ill treatment from defendants
No.1 to 3 he was undergoing lot of suffering and pain. In fact he was
undergoing tension and anxiety and suffered fall sustaining injury.
Therefore Late Sampath Singh Bohra was compelled to leave the first
floor and started stay in the ground floor taking food from outside.
Since there was nobody to look after late Sampath Singh Bohra and
defendants No.1 to 3 were not allowing him to come and look after his
father. That his father was suffering from mental agony. Due to affinity
towards the property his father was reluctant to come and stay with him
in the rented property at Malleshwaram. Therefore on the advice of the
well wishers of the family, a sort of settlement was arrived at between
the defendants No.1 to 3 and late Sampath Singh Bohra on 22/02/1996.
On the basis of the said settlement the defendants No.1 to 3 shifted
from first floor to the ground floor. The defendant No.1 and late
25
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Common Judgment C /w O.S.No.2731/2002
Sampath Singh Bohra decided not to live jointly as husband and wife
and they have mutually agreed to live separately or the rest of their life.
Further under said settlement defendant No.1 was paid Rs.5,00,000/-
and defendants No.2 and 3 were paid Rs.10,00,000/- each by his father.
Thus in 1996 the defendants No.1 to 3 were residing in the ground
floor and his father was alone staying in the first floor. Though his
father was alone in the first floor there was no peace of mind to his
father due to the ill treatment meted out by the defendants No.1 to 3 in
1994 the land lord of the premises in which he was residing at
Malleshwaram filed an eviction petition against him in HRC
No.2329/1994 which came to be allowed on 25/05/1998. He preferred
appeal in Revision petition in HRRP No.178/1998. The said revision
petition came to be dismissed on 17/08/1998 granting time to him till
February 2000 to vacate and hand over the possession to the landlord.
Since he had no other property to stay, his father asked him to come
and stay with him in the first floor i.e. Suit Schedule Item-I property.
Then he shifted his residence to the Suit Schedule Item-I in the year
2000. Ever since then he is staying in the Suit Schedule Item No.1
26
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
property and using the entire premises along with his father. In the year
1999 the health of late Sampath Singh Bohra deteriorated fully and
hence as per the advise of doctor he was constrained to shift to the
ground floor and till his death he was staying in the ground floor
portion. The defendants No.2 and 3 after taking the money from the
father purchased the property bearing No.173 in which they started
staying separately i.e. in Suit Schedule 3-A property.
16) The plaintiff further submits that Suit Schedule 3A property has
been purchased by late Sampath Singh Bohra in the name defendant
No.2 nominally and the entire consideration for the same has been paid
by his father. He is entitle to 1/6th share in this property. That he learnt
from reliable sources that site bearing No.2382, HAL 3 rd stage,
Bangalore as detailed in Suit Schedule 3-B was purchased by the
defendants No.1 and 2 jointly. The plaintiff further submits that entire
consideration for the same was paid by his father and he is entitle to
1/6th share in this property. The plaintiff further submits that his father
expired on 18/11/2000 leaving behind the property shown in the
schedule. These schedule properties are self acquired properties of his
27
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Common Judgment C /w O.S.No.2731/2002
fater late Sampath Singh Bohra. That his father died intestate and hence
he and defendants No.1 to 5 have got equal share in respect of all the
schedule properties. The defendants No.1 to 3 with an intention to
deprive his legitimate share out of the self acquired properties of late
Sampath Singh Bohra stared claiming that his father executed WILL
and bequeathed all his properties in favour of the defendants No.1 to 3
and further insisting him to vacate the property.
17) The plaintiff further submits that in fact his father has made
deposit in Global Trust Bank Limited under two Negotiable Certificate
of Deposit bearing Nos.15024289 and 150254293 for an amount of
Rs.7,00,000/-and Rs.8,00,000/- respectively [Suit Schedule-4
property]. These deposits were matured on 29/11/2000 and 11/12/2000.
The defendant No.1 made an attempt to withdraw this amount without
his knowledge. It appears the Global Trust Bank Limited has requested
the defendant No.1 to produce the succession certificate for receiving
the amount from the Bank. Therefore there was dispute between
defendant No.1 and the Global Trust Bank Limited and defendant No.1
filed suit in O.S.No.15743/2001 seeking for mandatory injunction
28
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
against the Global Trust Bank directing the Bank to pay the amount in
her favour. When the bank refused defendant made reference to WILL
alleged to be executed by late Sampath Singh Bohra but has not
produced the same in the suit. This fact came to his knowledge and he
has filed application in OS.No.15743/2001 U/o I Rule 10(2) CPC and
said application was allowed and he was impleaded as defendant No.2.
18) The plaintiff further submits that the alleged WILL is concocted
and created and his father never executed any WILL and in fact the
relationship his father and defendants No.1 to 3 was also not cordial.
The defendants No.1 to 3 must have created the alleged WILL only to
deprive his legitimate share in respect of the suit schedule property. In
fact there was no love and affection between his father and the
defendants No.1 to 3 because of constant harassment given by
defendants No.2 to 3 to his father. The Plaintiff further submits that his
father filed criminal case against the defendants No.1 to 3 and even the
Memorandum of understanding dated 22/02/1996 clearly shows that
there is no cordiality love and affection between his father and
defendants No.2 to 3. The defendants No.1 to 3 are concocting story of
29
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Common Judgment C /w O.S.No.2731/2002
WILL only to deprive his legitimate share in the properties left behind
by his late father. In view of false claim made by defendants No.1 to 3
he has constrained to seek partition and separate possession of 1/5th
share in respect of the suit schedule property which are self acquired
properties of his father. The plaintiff submits that from the so called
certified copy of the WILL it is seen that late Sampath Singh Bohra had
stated that he was tenant of shop premises bearing No.100, Subedar
Chatram Road, Bangalore and defendant No.2 has produced receipt at
ExD41 admitting he has paid Rs.120/- as rent for the said premises for
November and December 2000. But now he understand that defendant
No.2 has handed over the premises to the owner after receiving
Rs.10,00,000/- as compensation from the owner. That he is entitle for
1/6th share being Rs.1,66,666/- together with interest at the rate of 18%
p.a. which is detailed in Schedule-7 and defendant No.2 is utilizing this
amount in his finance business.
19) The plaintiff submits that cause of action for the suit arose from
18/11/2000 when his father expired and subsequently when defendants
No.1 to 3 refused to give share and started insisting him to vacate the
30
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
premises by concocting the story of WILL in OS.No.15743/2001. Since
he is claiming his legitimate share in respect of the properties of his
father, defendants are now trying to take law into their own hands and
trying to disturb his possession in respect of Suit Schedule Item No.I
and hence he is constrained to seek injunction against defendants. The
plaintiff further submits that his father has got several bank accounts
and those accounts are in custody of the defendant No.1. The defendant
No.1 is trying to withdraw the amount in those accounts and in fact has
already utilized part of the amount lying in those accounts. That his
father advanced money to several borrowers and defendants have
realized the said amounts. The plaintiff prays to decree for partition and
separate possession against defendants for 1/5th share in all the suit
schedule properties and separate possession by metes and bounds in
respect of the suit schedule properties No.1 to 3 and direct the
defendant No.1 to furnish the detailed accounts in respect of the money
left behind by his father and to pay the mesne profits and also 1/5th
share in all the movables left behind by the late Sampath Singh Bohra
and 1/4th share in HUF capital.
31
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Common Judgment C /w O.S.No.2731/2002
SCHEDULE-I
All that first floor proton of the property bearing
corporation No.37/1 measuring 12.81 Squared with the
garage on the ground floor (facing north) built on site
No.155 measuring East to West 40 feet and North to South
60 feet, 8th Main Road, Vasanthanagar West Extension,
Bangalore 560 052 with an undivided interest in the site
bearing No.155 bounded on East by site bearing No.154,
West by 30 feet cross road, North by 40 feet Road and
South by site No.173.
SCHEDULE I-A
All that first floor proton of the property bearing
corporation No.37, 1st cross, 8th Main Road, Vasanthanagar
West, Bangalore 52 measuring 12.81 squares with the
garage facing west site measuring 60" x 40" with an
undivided 50% in the site bearing No.155 bounded on the
East: property No.154, West 30 feet cross road, North 40
feet road and South property No.173.
SCHEDULE I-B
32
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
All that piece and parcel off ground and first floor old
house property bearing No.1, 7th Cross, 8th Main road,
Malleshwaram, Bangalore 3 measuring about 3000 sq. ft
bounded on the East 8th Main Road, West 11th Main road,
Malleshwaram Rly. station road, North Property No.2 in
8th Main Road, South 7th cross, Malleshwaram.
SCHEDULE-2
All that piece and parcel of immovable property being a
vacant site bearing No.314C situated in the private layout
at Kenchanahalli and Haligevaderahalli, Kengeri Hobli,
Bangalore south taluk formed by the ideal Homes co
operative society Ltd., and approved by the Bangalore
Development Authority, together with all rights, privileges
and appurtenances thereto and site measuring East to west
48 ft = 49 ft/2, north to south 65 Ft + 69 Ft/2, total area
3249.5 Sq. Ft. and bounded on the East by site No.314D,
west by Loop Road No.10, North by Loop Road No.10
South by site No.314D.
SCHEDULE -3
33
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
Shop premises with Mangalore tile roofing bearing
Corporation No.135/91 (Old No.39/9) situated in Subedar
Chatram Road, Sheshadripuram, Bangalore, Corporation
Division No.20 measuring East to West 20 feet and North
to south 10 Feet 9 inches including the wall on the
western, northern and southern side and bounded on East
by Road, west by property belonging to Abdul Khalak,
North by Dr. Puttanna's property, South by property
belonging to Abdul Khalak.
SCHEDULE 3-A
All that piece and parcel of ground, first and second floor
house/commercial property bearing No.173 [New
No.173/13] situated at 1st cross, 8th Main Road,
Vasanthanagar West, Bangalore measuring 60" x 40"
together with the building thereon, bounded on the East by
property No.19 facing 2nd cross, West by 1st cross Road,
North Property No.37 and 37/1 [Old No.155] South
Property No.172.
SCHEDULE-4
34
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
Deposits made with M/s Global Trust Bank Limited
bearing Negotiable Certificate Nos.15024289 and
150254293 for Rs.7,00,000/-and Rs.8,00,000/-
respectively.
SCHEDULE-5
The movable properties left by late Sampath Singh Bohra:
i) Diamond Bangles 4 in numbers worth Rs.77,132/-
at the time of purchase present value in Rs.15
lakhs.
ii) Fiat UNO car bearing No.KA-04-P-3817.
iii) Amount in Syndicate Bank amounting to
Rs.8,17,415-78 as on 31/03/2000 standing in the
S.B.A/c.17050 in Syndicate Bank, Vasanthnagar
Branch, Bangalore 560 052.
iv) Cash on hand Rs.50,710/-.
v) Debt to be realized from the following persons:
(a) T.N. Suresh Rs.11,00,000/-
(b) Chandrakanth Rs.2,00,000/-
(c) Guru Sastri Mutt Rs.40,000/-
35
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
(d) Amount standing in HUF account of the
family Rs.5,46,326=12Ps
SCHEDULE-6
The house property situated at Bilara Village, Jodhpur
District, Rajasthan measuring approximately 1200 Sq. Ft.
constructed house.
SCHEDULE - 7
Late Sampath Singh Bohra was a tenant of shop premises
bearing No.100, Subedar Chatram Road, Bangalore 20 and
defendant No.2 has handed over this premises to the owner
after receiving Rs.10,00,000/- as compensation from the
owner. Plaintiff is entitled to Rs.1,66,666/- being 1/6th
share together with interest at the rate of 18% per annum as
defendant No.2 is rolling out this amount in his finance
business.
20) The defendants No.1 to 3 in OS.No.2731/2002 have filed their
written statement on 11/06/2002, they admits death of Sampath Singh
and his relationship with the plaintiff and defendants No.1 to 5. They
36
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
further submits that Sampath Singh died testate and not intestate having
left behind registered WILL dated 01/07/2000 in which the plaintiff is
also beneficiary. The defendant No.1 to 3 further submits that
defendant No.6 is not necessary or proper party to the suit, as there is
already suit in O.S.No.15743/2001 against the defendant No.5 by the
defendant No.1, who had been nominated to receive the sum of
Rs.15,00,000/- in the event of the death of her husband before maturity
besides being entitle to the said sum as a residual legatee under the said
WILL. The plaintiff got himself impleaded as the defendant No.2 in the
said suit and thus he was aware of the same pending in CCH-22 at
Mayo Hall, when he filed the present suit. Nevertheless he has made
the false averments in plaint para-8 to the following effect: "There is no
pendency of any legal proceedings and litigation either past or present
concerning any part of subject matter of this plaint in any court within
the knowledge of the plaintiff". That OS.No.15743/2001 was filed by
the defendant No.1 herein against the defendant No.6 herein on
18/06/2001 and the plaintiff herein filed his impleading application in
the said suit on 25/09/2001 and the same was allowed on 02/01/2002
37
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
and he was impleaded as defendant No.2 in OS.No.15743/2001 on
30/01/2002.
21) The defendant No.1 to 3 further submits that the present suit has
been filed nearly three months later on 18/04/2002. Thus he himself
having been party to the earlier suit involving plaint schedule-4
property in this suit that is Rs.15,00,000/-, he has deliberately made
false statement vide para No.8 of the plaint as detailed above, further in
O.S No.15743/2001 he has acted in collusion with the defendant No.6
herein (Global Trust Bank) falsely describing the term deposit of
Rs.15,00,000/- in respect of which the first defendant was registered as
the nominee by the bank itself, as a negotiable instrument. The plaintiff
cannot in this suit seek any interim relief to direct the defendant No.6
herein not to pay Rs.15,00,000/- to the defendant No.1. The defendants
No.1 to 3 further submits that the remedy if any in this behalf lies
elsewhere that is in OS.No.15743/2001 to which himself voluntarily
got impleaded as defendant No.2 and has filed his written statement
therein in manner supporting the dilatory tactics of the bank, which is
withholding the large sum of Rs.15,00,000/- for more than year now
38
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
and earning interest thereon. Hence the court strikes be off defendant
No.6 U/o 1 Rule 10 (2) of CPC. As regards para No.3 of the plaint.
The defendants No.1 to 3 further submits it is true that except the house
at Rajasthan, all the properties both movable and immovable as
detailed in the plaint schedule were the self-acquisitions of late
Sampath Singh. However the reference in the said para to the ground
floor No.37, which is in exclusive possession of the defendant No.1, as
the absolute owner and khatedar as having been purchased by Sampath
Singh in the name of defendant No.1 is absolutely false. The
defendants No.1 to 3 further submits that purchase of the ground floor
was by defendant No.1 exclusively with her own funds and it is her
exclusively owned property. The first floor No.37/1 was of course
purchased by Sampath Singh for himself with his own funds and as
such the same was his self- acquired property. It is false that Sampath
Singh and defendant No.1 were not on good terms. If that were to be
so, how is it that he is alleged to have purchased the ground floor out of
his money in her name for her benefit and provided capital to her to
start automobile finance business. On 26/03/1992 at about 5 a.m.
39
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
plaintiff at the instigation of his wife voluntarily and abruptly left the
Kumarpark house where the joint family was then residing and started
residing in rented house in Malleshwaram, where he continued to
reside till February 2000. He then requested Sampath Singh for
temporary accommodation in the first floor for just three months on the
ground that there was eviction order against him in respect of the
Malleswaram house and that the house purchased by him at R.T. Nagar
required repairs and renovation. He was provided Rs.10,00,000/- by
Sampath Singh in November 1995 and with some addition of
Rs.3,00,000/- from his HUF to his wife's account he purchased it in the
name of his wife, that is he purchased the R.T. Nagar house for more
than Rs.10,00,000/- and on the plea that it required repairs and
renovation sought and got leave and license from Sampath Singh for a
three-month stay in the first floor No.37/1 but continued to stay therein
even after the death of Sampath Singh illegally. The defendants No.1 to
3 further submits that leave and license was restricted to the first floor
(Less two rooms) and did not cover the garage attached to it, which
was in possession of late Sampath Singh and continues to be in
40
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
possession after his death by defendant No.1. The garage has also an
entrance from the ground floor No.37 since more than 3 years. The
defendants No.1 to 3 further submits that under the registered WILL
dated 01/07/2000 of Sampath Singh the first floor was bequeathed to
the first defendant by way of life interest followed by the same going to
defendant No.3 on her demise and he acquiring absolute ownership
therein. Thus on the death of Sampath Singh on 18/11/2000 the entire
first floor No.37/1 vested with defendant No.1 as one of the
beneficiaries under his registered WILL dated 01/07/2000 and
plaintiff's occupation after the death of Sampath Singh, the leave and
license elapsed and got automatically revoked, and the plaintiff is
continuing to occupy the first floor (schedule I of plaint) under revoked
license in property of which the defendant No.1 has become owner
under the WILL of her late husband. Hence defendant No.1 is entitle to
seek occupation of the first floor (plaint schedule-I item) through
direction by means of decree of mandatory injunction calling upon the
plaintiff to cease using and occupying plaint schedule item-I and permit
its use and occupation by the first defendant. Besides defendant is
41
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
entitle to damages from the plaintiff for unlawful use and occupation
from 18/11/2000, on which date she acquired interest in the first floor
through her husband's registered WILL dated 01/07/2000 up to date i.e.
for period of 19 months at the rate of Rs.12,000/- per month as the first
month is nearly 1300 square feet in extent and even if let out at a
modest rate of about Rs.9/- per square feet. The minimum monthly rent
from the said first floor will be nearly Rs.12,000/- per month. Hence
defendant No.1 is entitle to sum of Rs.2,28,000/- by way of damages
for use and occupation or mesne profits from 18/11/2000 to date
besides an enquiry into future mesne profits. Thus the defendant No.1
besides seeking dismissal of the suit on the ground that all the plaint
schedule self-acquired properties of the late Sampath Singh were
bequeathed to his heirs including to plaintiff by registered WILL dated
01/07/2000 and that nothing remained to be partitioned after his death
and as on the date of filing of this suit, is at this stage itself making
counter claim U/O 8 rule 6A CPC for relief of Mandatory Injunction in
respect of plaint item No.1 (first floor No.37/1) directing plaintiff to
cease using and occupying the same and to permit its use and
42
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
occupation by the first defendant, damages for use and occupation
against the plaintiff in respect of the plaint item No.1 (1 st floor) at the
rate of Rs.12,000/- per month amounting to Rs.2,28,000/- for the period
18/11/2000 to 17/06/2001 for enquiry relating to future mesne profits.
22) The defendants No.1 to 3 further submits in respect of the
allegations of non-cooperation and quarrels are traverse of truth nor is
it true that they were silenced by Sampath Singh through payments
allegedly made to them by him for starting their own business. The
defendants No.1 to 3 further submits that they have been doing
business on their own and with their skill and enterprise commenced
and developed their individual business. It is false to allege that after
the marriage of the defendant No.4 alleged difference and quarrels
between these defendants and Sampath Singh escalated and that he was
ill-treated by these defendants leading to increase in his hypertension
and diabetes. He continued to reside in the 1 st floor and was doing
business in the ground floor and it is utterly false that he was not being
provided home food and that he was getting food from outside. The
repeated allegations of cruelty by these defendants and resultant mental
43
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Common Judgment C /w O.S.No.2731/2002
agony to Sampath Singh have their origin in the plaintiff's mind to
create prejudice against these defendants. On the other hand he was not
at all willing to stay at any time with the plaintiff in the plaintiff's
rented house at Malleshwaram, as he did not appreciate plaintiff's
attitude and aggressive behaviour towards the other members of his
family. Plaintiff was at loggerhead with Sampath Singh and there was
bad blood between them. However to satisfy the late Sampath Singh
and to prevent any deterioration in his health, as per his wish these
defendants and defendants No.4 and 5 signed what he told them was
Memorandum of Understanding, so as to abide by his wish they just
signed being unaware of its contents and not at all getting any benefit
or advantage there from. This was done under pressure from certain
relatives, who insisted on doing so on the ground that it would be in the
interest of the family and the well-being of Sampath Singh. There was
no shifting by these defendants to the ground floor in pursuance of the
alleged Memorandum of Understanding. As in case of the
Memorandum, to please Sampath Singh and to avoid any bitterness
these defendants signed receipts referring therein to some payments,
44
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Common Judgment C /w O.S.No.2731/2002
which in fact these defendants did not receive. All this happened under
the honest belief entertained by these defendants that if, they did not
sign, no matter they got no benefit from their doing so, there would be
disharmony and even disaster if something happened to Sampath
Singh, consequent to his indifferent health. As regards stay of plaintiff
in the first floor from February 2000, this was by way of temporary
licensed accommodation on the twin grounds of eviction order in
respect of the Malleswaram property and non-completion of plaintiff's
own bungalow at R.T. Nagar. His stay in the 1st floor was not in his
own right and Sampath Singh was not residing with him in the 1 st floor.
In fact plaintiff was not accommodated in the entire first floor, but in
the 1st floor less two rooms and garage. These two rooms contained
Sampath Singh's documents and personal articles and the plaintiff
unlocked these rooms and removed the articles and documents. After
Sampath Singh's death he has occupied the other two rooms also, but
the garage continues to b..e in occupation of the first defendant. In fact
as stated by the plaintiff himself in para-4 till his death Sampath Singh
was residing in the ground floor. It is false that property No.173 was
45
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
purchased by defendants No.2 and 3 with the money allegedly got from
Sampath Singh. In fact it was purchased only by defendant No.2 with
his own earnings and not through any alleged payment to him by
Sampath Singh. Thus premises No.173 is the self-acquisition of the 2 nd
defendant and it was not acquired in the mode and manner as alleged
by the plaintiff.
23) The defendant No.1 to 3 further submits that Sampath Singh died
testate bequeathing all his self acquired properties through will
voluntarily executed and registered by him on 01/07/2002, as he was
keeping indifferent health and did not want any scramble after his death
in view of the aggressive conduct and avaracious nature of the plaintiff.
Not-withstanding having paid the plaintiff Rs.10,00,000/- earlier to
enable him to purchase a bungalow at RT Nagar, under the WILL he
bequeathed in his favour shop premises No.91, SC Road,
Seshadripuram in occupation of tenant from whom in pursuance of the
WILL the plaintiff is collecting rents as the owner and landlord thereof.
He is estopped from now denying the execution of the WILL under
which besides the aforesaid shop premises, he was also bequeathed a
46
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
pistol one curio and a table, the last two being in his possession. The
pistol found in dismantled condition in the bathroom dhaba of the
ground floor along with the expired license was deposited by the first
defendant in the High Ground Police Station u/s 21 of the Arms Act on
27/05/2002 he was also bequeathed 1/4 th share in item at schedule-5 of
plaint. The defendants No.1 to 3 further submits that as regards the
Rs.15,00,000/- deposit by Sampath Singh with defendant No.6 and
nomination in favour of the first defendant, she became entitled to the
same as the registered nominee on the maturity dates 29/11/2000 and
11/12/2000 as well as under the registered WILL dated 01/07/2000 as
the residual legatee but in collusion with the defendant No.6 the
deposits are being falsely described as Negotiable Instruments to
deprive her of the benefit of the same. The defendants No.1 to 3 further
submits that at any rate, as already stated above, the said deposits are
the subject matter of the earlier suits O.S 15743/2001 by defendant
No.1 in CCH-22 at Mayo Hall. It is false that the plaintiff learnt of
Sampath Singh's WILL for first time after demand of the deposited
amount by defendant No.1 from defendant No.6 and refusal to pay by
47
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Common Judgment C /w O.S.No.2731/2002
defendant No.6. The allegations of the plaintiff that the registered
WILL dated 01/07/2000 of Sampath Singh is concoction is nothing
short of gross insult to the departed soul, who through testamentary
distribution of his self acquired properties equitably, distributed the
same to all his heirs in a spirit of justice and fair-play. As regard some
earlier minor domestic differences, long prior to the execution of the
WILL between Sampath Singh and defendants No.1 to 3, these were
settled including criminal complaint by Sampath Singh against these
defendants at the instigation of the plaintiff, but which ended in "B"
final report with nothing further. Thus in face of the genuine and
voluntary disposition of all his immovable and movable properties by
late Sampath Singh and his WILL having come into force on
18/11/2000, the date of his death, the suit seeking partition is not
maintainable and plaintiff is liable to be non-suited. The defendants
No.1 to 3 further submits that there is no cause of action at all for the
suit as stated therein. What arose on 18/11/2000 was the vesting of
various properties, immovable and movable will all the heirs of
Sampath Singh including the plaintiff as detailed in his WILL. Hence
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Common Judgment C /w O.S.No.2731/2002
the question of plaintiff and these defendants refusing to give his
alleged share to him does not at all arise.
24) The defendants No.1 to 3 further submits that the plaintiff is not
entitle to any injunction against these defendants in respect of the 1 st
floor, as in this suit they have themselves conceded that he is in
unlawful possession of the same, without the garage, under an expired
license and have sought decrees of mandatory injunction and damages
by way of past mesne profits. The deceased was maintaining only two
accounts in the Syndicate Bank, Vasantha Nagar Branch, S.B.Account
No.17047 in his personal capacity and another current account No.744
in his capacity as the Kartha of the Hindu Undivided Family. The HUF
amount of Rs.4,30,491=35Ps has been withdrawn by the defendant
No.1 and Rs.1,00,000/- got from debtor Chandrakant on HUF account
as the nominee and she is ready to pay plaintiff's 1/4 th share from this
total capital of HUF amounting to Rs.5,46,316=12ps which she has
kept in fixed deposit having paid 1/4th share each therein to defendants
No.2 and 3 and retained her own 1/4 th share. This amount is item
No.5(d) of schedule 5 to the plaint. From the debtors of Sampath Singh,
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Common Judgment C /w O.S.No.2731/2002
these defendants could realize only Rs.80,000/- from Gopala Krishna,
Rs.1,32,000/- from Chandrakant and The defendants No.1 to 3 further
submits that no amount is due from Guru Sastri Mutt. As regards
T.N.Suresh only sum of Rs.4,50,000/- is due from him and it is as good
as lost and non-recoverable, as the said T.N.Suresh is absconding and
his whereabouts are not known. There is also complaint of cheating by
late Sampath Singh against Suresh in the Bharathinagar Police Station.
There is also CC.No.32611/2000 pending against Anantapadmanath
relating to bouncing of cheque of Rs.10,00,000/- issued to Sampath
Singh for loan advanced to him and O.S No.6777/97 against
Padmachand for recovery of Rs.1,72,000/-. The suit is not properly
valued and court fee paid is insufficient. As regards plaint para-8, as
already stated above suit O.S No.15743/2001 in respect of plaint
schedule item No.4 was already pending in CCH-22 against defendant
No.6 and the statement in para 8 is false to the knowledge of the
plaintiff and case of gross misrepresentation to the court. In fact
plaintiff himself got impleaded in the said suit through his IA U/O 1
rule 10 filed on 25/09/2001, long prior to filing of this suit and the
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Common Judgment C /w O.S.No.2731/2002
same was allowed on 02/01/2002. This suit has been filed on
18/04/2002. As regards schedules to the plaint, item in schedule-1
through the WILL of Sampath Singh has vested with defendant No.1
by way of life interest followed by defendant No.3 acquiring absolute
ownership. Item detailed in schedule-2 has gone jointly to defendants
No.4 and 5, item in schedule-3 has been bequeathed to plaintiff
absolutely and he has been recovering rents from the tenant in
occupation of it since the date of death of Sampath Singh. It is valuable
commercial property and its present market value is not less than
Rs.10,00,000/-. As regards Schedule-5 item 1 and 2 therein, i.e. 4
bangles the present market value of which is nearly 4-5 lakhs and Fiat
Uno Car have been bequeathed to defendant No.1 and she is the
absolute owner thereof. The RC relating to the UNO has also been
transferred in her name. As regards item No.3 of schedule-5 as on the
date of death of Sampath Singh the amount in his SB personal Account
No.17047 was Rs.1,20,932=78ps. SB Account No.17050 in Syndicate
Bank is not at all connected with the deceased. It is the personal
account of the defendant No.1. The plaintiff has no right or claim to
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Common Judgment C /w O.S.No.2731/2002
any share in SB A/c No.17050 of defendant No.1, but, as already stated
earlier he is entitle only to 1/4th share in HUF current account No.744
and as per the WILL, the amount in SB Account No.17047 held by the
deceased as per the WILL has gone to the defendant No.1, to which
also she had been earlier nominated. Cash on hand of Rs.68,057=70ps
also has vested in defendant No.1 as per the WILL. As per the WILL
the plaintiff also gets by bequeath to the extent of 1/3 rd share in item
detailed in schedule-6. As regards schedule-4 defendant No.1 is the
registered nominee in respect of the sum of Rs.15,00,000/- is also
entitle to this sum, to the exclusion of plaintiff and defendants No.2 to
5 as she is entitle under the WILL of Sampath Singh to residual
property left behind by him, or that in other words, she is the residual
legatee, and thus also succeeds as such to the matured deposit amount
of Rs.15,00,000/- unlawfully being with held by the defendant No.6 on
the instigation of the plaintiff. Thus plaintiff is bound by the registered
WILL of Sampath Singh and he is not entitle to partition as sought for
in his suit. The defendants No.2 and 3 prays to dismiss the suit of
plaintiff with costs and decree their counter claim for mandatory
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Common Judgment C /w O.S.No.2731/2002
injunction against the plaintiff directing the plaintiff to cease using and
occupying plaint schedule-1 first floor including two rooms (without
garage which is in occupation of defendant No.1) and permit its
occupation by the defendant No.1, and prays to decree the counter
claim against plaintiff directing to pay sum of Rs.2,28,000/- by way of
damages/mesne profits from 19/11/2000 to date and direct enquiry for
future mesne profits. The defendants No.2 & 3 prays to award costs of
the suit.
25) The plaintiff in O.S.No.2731/2002 has filed rejoinder to the
counter claims of defendants and submits the written statement is not in
accordance with the provisions of CPC and does not satisfy the
ingredients of Rule 6A of Order 8 CPC, hence defendants shall make
their claim by filing only an independent suit. The plaintiff submits that
it is false to state that he is staying in the suit schedule item No.1 as
licencee. The intention of the defendants is to dispossess him from the
suit schedule property using force. The plaintiff submits that it is false
to state that his late Sampath Singh Bohra executed WILL dated
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Common Judgment C /w O.S.No.2731/2002
01/07/2000. The alleged WILL is created by defendants No.1 to 3 to
avoid equal share to him out of the properties left behind by his father.
26) The plaintiff submits that his father was suffering from serious
ill-health since 1996 and ultimately expired on 18/11/2000. The
defendants 1 to 3 have created WILL to avoid his legitimate share. It is
false that defendant No.1 has been nominated to receive the sum of
Rs.15,00,000/- lying with defendant No.6. He already disclosed the
pendency of suit in OS.No.15743/2001 and there is no intention to
suppress anything before this court. The plaintiff submits that house
situated in R.T. Nagar, Bangalore belongs to his wife and does not
belong to the family of late Sampath Singh Bohra. It is false that
Sampath Singh Bohra provided Rs.10,00,000/- in November 1995 to
him. He shifted from Malleshwaram to the present suit schedule item
No.1 property as he had no other house to occupy and there was no
other person to look after his father. The defendants No.1 to 3 were not
looking after his father and defendants were quarreling with his father
for money. He is all along occupying the entire premises of the suit
schedule Item No.1 including garage. In fact now the defendants after
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Common Judgment C /w O.S.No.2731/2002
making open in the wall attached to the garage portion, with an
intention to dispossess him from the suit schedule property, started
making a claim that the garage is in their possession. It is false to state
that there is an entrance to the garage attached to door No.37/1 from
the ground floor of late the defendants No.1 to 3 have illegally broken
the wall in the ground floor and made attempt to enter into the garage
portion. It is false that his father has bequeathed door No.37/1 to the
defendant No.1 and going to defendant No.3 on her death. The WILL
dated 01/07/2000 is concocted and created, the story of leave and
license is concoction made by defendants and there is no such leave
and license granted by his father.
27) The plaintiff further submits he is staying in D.No.37/1 as son
of late Sampath Singh Bohra and after the death of Sampath Singh
Bohra he along with defendants No.1 to 5 succeeded to estate of the
deceased. He is staying on his own right and no on the basis of any
limited right as alleged by defendants No.1 to 3. The plaintiff denied
that the defendant No.1 is entitle to seek occupation of the plaint
schedule Item No.1. The defendants No.1 to 3 are not entitle for any
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Common Judgment C /w O.S.No.2731/2002
relief in the present suit. The plaintiff denied that defendants are entitle
for damages from the him on the basis of alleged unlawful occupation
of him from 18/11/2000. He denied that defendants No.1 to 3 have
acquired absolute interest in suit schedule item No.1 through the
alleged WILL dated 01/07/2000. The defendants are not entitled to
Rs.2,28,000/- by way of damages. The counter claim made by the
defendants cannot be adjudicated in the present suit as the nature of the
counter claim and the nature of the claim made in the suit are totally
different and cannot be tried in a single suit. Therefore defendants No.1
to 3 may be directed to file separate suit for establishing their claim.
The defendants No.1 to 3 making false statement that without
understanding the contents of the memorandum of understanding dated
22/02/1996 they had put signature. The plaintiff denied that defendants
No.1 to 3 have not taken any benefit or advantage from he said
memorandum of understanding. The plaintiff does not own any
bungalow at R.T. Nagar. The plaintiff denied that allegations of
defendants No.1 to 3 that he is not in occupation of the entire suit
schedule Item No.1 property. The plaintiff denied that property bearing
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Common Judgment C /w O.S.No.2731/2002
No.173 is the self acquisition of the defendant No.2 and it was not
acquired through the money given by the father of the plaintiff. The
plaintiff denied that the allegations of defendants No.1 to 3 that he has
received Rs.10,00,000/- from his father to enable him to purchase a
bunglow at R.T. Nagar. The plaintiff admits that he is collecting the
rents at Rs.150/- per month from the tenant in respect of the shop
premises at No.91, Subedar Chatram Road, Sheshadriuram, Bangalore.
The plaintiff is ready to share the rent so received from the tenant in
accordance with the share going to be demarcated by this court. The
plaintiff denied the allegations of defendants No.1 to 3 that there is no
collusion between him and defendant No.6 in the matter of deposit
lying with defendant No.6. The plaintiff has not caused insult to the
departed soul by saying the WILL dated 01/07/2000 is created and
concocted. Even through "B" report has been filed in the complaint
filed by his father of against defendants No.1 to 3 the aversion created
in the mind of the father of plaintiff was not removed. In fact his father
has agreed for filing the 'B' report in order to avoid the family matter
getting public. The very fact that the defendant No.1 for the first time
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Common Judgment C /w O.S.No.2731/2002
contending that the plaintiff is entitled for a share in the amount lying
in the HUF account without paying same disclosing the WILL clearing
establishes the fact that the WILL has been created only to avoid the
share of the plaintiff. Even in the suit OS.No.15743/2001 filed by the
defendant no.1 the alleged WILL was not produced.
28) The plaintiff submits that disclosures made by the defendants in
para No.9 of the written statement is false. The plaintiff submits that
the defendants No.1 to 3 have recovered much ore amount than the one
shown in para from the debtors and there exists more amount in the
account shown in said para. The defendants shall be directed to
produce the details before the court. It is false to state that the present
market value of the Item No.(i) and (ii) of the schedule 5 is only about
Rs.15,00,000/-. The value of 4 bangles is about 15 lakhs. The alleged
transfer of car is illegal and in fact even the registering authority has
effected the change of name subject to pending litigation. The nature of
counter claim is different from the nature of suit filed by the plaintiff
and hence the counter claim cannot be entertained in the present suit.
Hence counter claim may be rejected as not maintainable. The plaintiff
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Common Judgment C /w O.S.No.2731/2002
prays to reject the counter claim of defendants No.1 to 3 and decree his
suit as prayed in the plaint.
29) The defendants No.1 and 2 in O.S.No.2731/2002 have filed
additional written statement dated 22/07/2009 wherein they have
contended that the contentions raised by the plaintiff by way of
amendment and introduction of additional facts are false, frivolous and
vexatious to the knowledge of the plaintiff. The plaintiff has raised the
said contentions after thought and there is absolutely no bonafides
much less the same are tenable in law. Regarding the plaint the
defendants emphatically deny the contention of the plaintiff that
properties described in schedule-IA and schedule 1B of the plaint were
purchased by the father of the plaintiff in the name of the 1 st defendant.
In fact the defendant No.1 became the exclusive and absolute owner in
possession of the said properties on the strength of the registered sale
deeds and a rectification deed executed in her name from out of her
own individual income earned by her in her automobile business and
certainly not from out of the funds alleged to have been provided by
her husband i.e. the father of the plaintiff. In fact defendant No.1 has
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Common Judgment C /w O.S.No.2731/2002
been the Income Tax and Wealth Tax assessee in her individual
capacity for the last 36 years and the aforesaid registered deeds in
respect of the above said properties speak in volumes to the fact that
both the properties are indisputably the self acquisition of defendant
No.1. Under the circumstances there is absolutely no basis in the
contention of the plaintiff that the consideration for both the properties
were paid by his father and that defendant No.1 could not deal with the
said properties on her own in any manner and the said contentions are
false. To buttress the fact of self acquisition of the aforesaid properties,
defendant No.1 produced relevant documents pertaining to Income Tax,
Wealth Tax, Transport department and the documents of title referred to
above which are self explanatory. Apart from this fact, it is relevant to
mention here that the defendant No.1 being the absolute owner in
possession of the plaint schedule 1-A property has gifted the same in
favour of defendant No.3 by means of registered Gift Deed dated
23/01/2007. The defendants emphatically deny the contention of the
plaintiff that the property described in schedule 3-A of the plaint has
been purchased by late Sampath Singh in the name of the defendant
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Common Judgment C /w O.S.No.2731/2002
No.2 nominally and that the entire consideration for the same has been
paid by the plaintiff's father. That the aforesaid property has been
acquired by the defendant No.2 out of his own individual income
earned by him in his individual business of automobile finance and
became the absolute owner in possession of the same on the strength of
a registered Sale Deed dated 25/01/1997. The documents of title
pertaining to the said property are produced herewith along with
documents pertaining to Income Tax and Hire Purchase Business. It is
undisputed that the defendant No.2 has been the Income Tax assessee
for the last 20 years and he acquired the aforesaid property comprised
in schedule 3A of the plaint, from out of his own income which fact is
more fully evidenced in the Bank Statement pertaining to the defendant
No.2's SB A/c maintained in Canara Bank, Kumara Park West
Bangalore-560020. The plaintiff has no iota of material to show that the
said property has been purchased in the name of the defendant No.2 by
his father nominally and as such there is no basis in the contention that
the plaintiff is entitle for 1/6th share in the said property and the said
claim of the plaintiff is false and untenable to the knowledge of the
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Common Judgment C /w O.S.No.2731/2002
plaintiff. Further in the light of the contentions raised herein above,
there is no basis in the imaginary plea of the plaintiff that the joint
acquisition of the defendants No.1 and 2 with respect to schedule 3B of
the plaint has been again financed by the father of the plaintiff and the
said contention is false. When both the defendants No.1 and 2 are the
IT assesses for the last several years having individual income of their
own, there was no necessity whatsoever for them to seek finance from
the plaintiff's father and as such, it is only the figment of imagination of
the plaintiff that he is entitle for 1/6th share in said the plaint schedule -
3B property and the said claim of the plaintiff is denied. Even
otherwise said property has been sold by the defendant No.2 in the year
2002 to the knowledge of the plaintiff and the very fact that the
plaintiff did not raise his title finger with respect to joint acquisition of
the same in the year 1995 by the defendants No.1 and 2 and disposing
of the same in the year 2002, would further speak in volumes to the fact
that the claim now sought to be put forward by the plaintiff with
respect to the said property is after thought and obviously in order to
harass and tease the defendants. That regarding additional plaint
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Common Judgment C /w O.S.No.2731/2002
allegations contained in paragraph 4B of the plaint the plaintiff tries to
approbate and reprobate in his contentions regarding the very execution
of the WILL. In one breath the plaintiff contends that his father died
intestate and that he did not execute the WILL relied upon by the
defendants. In another breath for the sake of taking undue advantage of
the situation, the plaintiff claims 1/6th share in the compensation
amount alleged to have been received by defendant No.2 from the
owner of the premises bearing No.100, Subedhar Chatram Road,
Bangalore-560020. The very dual contention of the plaintiff in this
regard WILL lend support to the authenticity, genuineness, truthfulness
and execution of the WILL relied upon by the defendants in their
written statement. The defendant emphatically denies the allegation of
the plaintiff that he has received any compensation from the owner of
the afore-said premises much less sum of Rs.10,00,000/- as contended
by the plaintiff. In fact pursuant to the terms of the WILL, the
defendant No.2 was alone treated as tenant of the afore-said premises
by the owner of the said premises by receiving the monthly rental of
Rs.60/- per month and since the premises in question was not useful to
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Common Judgment C /w O.S.No.2731/2002
the defendant No.2, he was constrained to surrender the same in favour
of his landlord who instituted suit in OS.No.6971/2005 for eviction of
the premises as against the defendant No.2 alone and for consequential
relief of mesne profit at the rate of Rs.1,500/- per month. Under the
circumstances stated above, claim of the plaintiff to an extent of his
alleged 1/6th share being Rs.1,66,666/- together with interest at the rate
of 18% p.a. is false, frivolous and most speculative in nature.
30) The defendant No.3 counsel filed memo on 2/07/2009 adopting
the additional written statement filed by defendants No.1 and 2 in
O.S.No.2731/2002 as additional written statement of defendant No.3.
The defendant No.7 in O.S.No.2731/2002 has filed written statement.
But the plaintiff in O.S.No.2731/2002 filed memo stating that he give
up his claim over plaint schedule 3(B) property which belongs to
defendant No.7 and he prays to release defendant No.7 from the case as
the same withdrawn by the plaintiff. The defendant No.7 counsel
submitted to accept the memo filed by the plaintiff counsel. Hence on
04/07/2017 this court passed order accepting the memo and deleted
defendant No.7 from the plaint and also deleted the suit schedule-3B
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Common Judgment C /w O.S.No.2731/2002
property from the schedule of plaint. Hence there is no need to discuss
about the written statement of defendant No.7 and schedule-3B
property.
31) On the basis of above pleadings following Issues and additional
Issues framed in both suits. But in OS.No.2731/2002 Issues are
amended, hence amended Issues are taken for discussion:-
:ISSUES IN OS.No.15743/2001:
(1) Whether the plaintiff proves that the defendant
illegally refused to enforce and implement
nomination of the plaintiff in respect to deposit
certificates No.1502451289 and 1502254293?
(2) Whether the plaintiff is entitled to relief of
Mandatory Injunction?
(3) What order or decree?
: ISSUES [AMENDED] In OS.No.2731/2002:
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1) Whether the plaintiff proves that the parties herein
constitute Joint Hindu Undivided Family?
2) Whether the plaintiff proves that suit schedule
property are the joint family properties of the parties
to the suit?
3) Whether the plaintiff proves that he is entitled for
1/6th share in the suit schedule property and for
separate possession of the same by metes and
bounds?
4) Whether the plaintiff proves that he is entitled for
mesne profits?
5) Whether the plaintiff proves that he is entitled for
1/4th share in the capital amount of joint Hindu
undivided family?
6) Whether the defendants 1 to 3 prove that they are
entitled for mandatory injunction in respect of item
No.1 directing the plaintiff to cease the using and
occupying the said property and permit the first
defendant to occupy the said property?
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7) Whether defendants No.1 to 3 make out a case for an
enquiry for the mesne profits from 18/11/2000 to
17/06/2002 pertaining to suit item No.1 and also
cause future mesne profits?
8) Whether the suit is bad for mis joinder of proper
parties?
9) Whether he defendants 1 to 3 prove that late Sri
Sampatth Singh Bohra executed the will dated
01/07/2000 bequeathing the properties?
10) To what reliefs the parties are entitled?
:ADDITIONAL ISSUES:
1) Whether the property bearing No.45, 7 th cross, HMT
Layout,Vishweshwaraiah Nagar, Gangenahalli,
Bangalore is liable for partition as contended by
defendants 1 to 3?
2) Whether plaintiff proves that suit schedule 3 A and 3
B are join family properties and he is entitle for 1/6th
share in these properties?
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3) Whether the claim in respect of suit schedule 3B
property is barred by limitation as contended by
defendant No.7?
4) Whether the valuation of the suit and payment of
court fee in respect of suit schedule 3B property is not
correct and proper as contended by defendant No.7?
5) Whether plaintiff proves that the 2nd defendant has
received a sum of Rs.10,00,000/- on vacating the suit
schedule Item No.7 property and he is entitle for 1/6th
share in the said amount by way of partition?
32) The plaintiff in O.S.No.2731/2002 examined as PW.1 on
05/02/2005, then further examined on 02/11/2010 and further examined
on 29/09/2018 and marked documents at ExP1 to ExP123 and closed
the plaintiff side evidence. The plaintiff counsel marked ExP124
through confrontation in the evidence of DW.2.
33) On 16/01/2007 this court passed order in OS.No.15743/2001
that OS.No.2731/2002 is comprehensive suit. That OS.No.15743/2001
deals with only one aspect namely schedule No.4 of the other suit. The
parties are same. The matter involved so far as the suit is concerned is
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Common Judgment C /w O.S.No.2731/2002
one and the same. There is common question of law and fact. In order
to avoid unnecessary and lengthy cross examination and multiplicity of
proceedings, it appears that it would be just and proper to club this suit
[OS.No.157432001] with OS.No.2731/2002 and hence
OS.No.15743/2001 is ordered to be clubbed with OS.No.2731/2002
and it is ordered that there shall be common evidence.
34) The defendant No.2 in O.S.No.2731/2002 examined as DW.1 on
07/04/2007 and further examined on 27/06/2013 and further examined
on 08/03/2019 and marked documents ExD1 to ExD181. The
defendant No.2 examined the witnesses DW.2 and in his evidence
marked ExD4, ExD4 (a) to ExD4(x). The defendant No.2 examined the
witness DW.3 and closed their side of evidence.
35) The plaintiff of OS.No.15743/2001 is the defendant No.1 in
OS.No.2731/2002 and said plaintiff and defendant No.1 has not
examined and not marked any documents. Further the defendant No.1
Bank in OS.No.15743/2001 is defendant No.6 in OS.No.2731/2002,
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but the authorized person of the said Bank has also not examined and
not marked any documents.
36) The plaintiff and defendants counsel argued and filed memo
with citations. Perused records.
37) My findings to above Issues and Additional Issues in both suits
are as under.
:ISSUES IN O.S.NO.15743/2001:
Issue No.1: In Affirmative
Issue No.2: In Affirmative
Issue No.3: See final order
:ISSUES [AMENDED] IN OS No.2732/2002]
Issue No.1: Partly in Affirmative
Issue No.2: Partly in Affirmative
Issue No.3: Partly in Affirmative
Issue No.4: In Negative
Issue No.5: In Negative
Issue No.6: In Affirmative
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Issue No.7: In Negative
Issue No.8: In Negative
Issue No.9: In Negative
Addl.Issue No.1: In Negative
Addl Issue No.2: partly in Affirmative
Addl Issue No.3: Defendant No.7 deleted as per order
dt.04/07/2017, hence no need to give
findings.
Addl Issue No.3: Defendant No.7 deleted as per order
dt.04/07/2017, hence no need to give
findings.
Addl Issue No.5: In Negative
Issue No.10 : See final order for following:
:REASONS:
38) Issues No.1 & 2 in OS.No.15743/2001 and Issues No.1 to 9
and Additional Issues No.1, 2, 5:
The plaintiff in O.S.No.2731/2002 Dinesh Singh S/o Sampath
Singh Bohra has filed his affidavit evidence in lieu of examination in
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chief as PW.1 on 05/02/2005 and deposed evidence that he filed suit
seeking for 1/5th share in all the suit schedule properties and for
separate possession by metes and bounds and also for a direction to
defendant No.1 to furnish detailed accounts in respect of the money left
behind by his father and pay mesne profits and also 1/5 th share in all
movable left behind by his father and 1/4th share in HUF capital. He
and defendants are legal heirs of late Sampath Singh Bhora. That his
father expired on 18/11/2000 at Bangalore and he and defendants No.1
to 5 are only legal heirs and entitle to succeed to the estate of his
deceased father in respect of the properties mentioned in the schedule.
He is eldest son, defendant No.1 his mother and defendants No.2 to 5
are his brothers and sisters. The defendant No.6 is the Bank in which
the father of the plaintiff has deposited Rs.15,00,000/- under
Negotiable Certificate of deposit. He is seeking for direction to the
Bank not to pay the amount to the defendants alone and hence he had
impleaded the defendant No.6 as formal party. That his father hailed
from Bilara of Jodhpur District in the State of Rajasthan and after
coming to Bangalore, he married defendant No.1 in the year 1960.
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That his father inherited only an ancestral house situated at Bilara
Village, Jodhpur District, Rajasthan measuring approximately 1200
square feet. The said house is under lock and there is no income from
the said property. After coming to Bangalore his father started an Auto
Finance Business, out of said business, his father earned lot of
immovable and movable properties as described in the schedule of the
plaint.
39) The PW.1 further deposed evidence that he is carrying on the
business of Auto Finance and defendants No.2 and 3 are also carrying
on own business of Auto Finance under Bohra Finance Pvt., Ltd., and
earning their livelihood. Even defendant No.1 is carrying on Auto
Finance Business under the name and style of Surekhadevi Financier
Automotive and has got earnings of her own. The defendants No.4 and
5 are his sisters and they are married and living with their respective
husbands. The marriage of daughters was performed by his father by
taking his help. Earlier he and defendants No.1 to 5 were residing with
his father at No.104, Railway Parallel Road, Kumara Park West,
Bangalore, it was a rented house. He married in the year 1989 and
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thereafter his wife and defendant No.1 had no good relationship, hence
his mother was pestering his father to send him out of the house
regularly. There was frequent quarrel in the family created by the
defendant No.1 and hence to avoid unnecessary disturbance in the
family and to main good relationship he decided to stay separately. He
shifted to rented premises at Malleshwaram in the year 1992. In the
same year his father purchased the property bearing Site No.15
measuring 40 x 60 feet at 8th Main Road, Vasantha Nagar West
Extension, Bangalore-560052 with constructed building thereon. The
building consists of ground floor and first floor with two car garage on
the right and left side of the building. The ground floor was purchased
by father of the plaintiff in the name of defendant No.1 for valuable
consideration of Rs.6,00,000/- on 22/08/1992. The entire consideration
was paid by his father alone. Subsequently on 11/11/1992 his father
purchased the first floor portion of the same property for valuable
consideration of Rs.6,50,000/-, the said property is schedule item No.1
of the plaint. At the time of purchase there was a tenant namely Surya
lamps Limited in occupation of the Ground floor on a monthly rent of
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Rs.5,500/-. In fact relationship between his father and defendant No.1
was not cordial. His father purchased the ground floor portion in the
name of defendant No.1 with view to provide her stability and also
provide capital for her to start her own Auto Finance Business and thus
the defendant No.1 has started an Auto Finance Business in the name
and style "Surekhadevi Financier Automotive".
40) The PW.1 further deposed that the defendants No.1 to 3
frequently quarreling with his father for money. To maintain the dignity
of the family, his father made provision for income to the defendants
No.1 to 3 by providing them necessary capital to start their own
business. The tenant who had occupied the ground floor of property
purchased by his father on 22/08/1992 vacated the same in the year
1993. Till then his father was carrying on the business in the suit
schedule item No.1. Since there was no separate premise available,
even the defendants No.1 to 3 had also carried their respective business
in the suit schedule item No.1 property. Since the ground floor was in
occupation of tenant, the Suit Schedule Item No.1 was kept by his
father and defendants No.1 to 3 were carrying on business. The
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defendants No.1 to 3 were always in inimical towards him and also his
father's money. The defendants No.1 to 3 were not tolerating even he
talks to his father. The marriage of defendant No.4 was performed in
the year 1995. After marriage of defendant No.4 difference between his
father and defendants No.1 to 4 increased leading to a total breakdown
of peace and tranquility. His father was suffering from diabetes and
Hypertension and due to the ill treatment from defendants No.1 to 3, he
was undergoing lot of suffering and pain. In fact he was undergoing
tension and anxiety and suffered a fall sustaining injury. Therefore his
father was compelled to leave the first floor and started stay in the
ground floor taking food from outside. Nobody looked after his father
and he was not being allowed to look after his father. Since the
property is self acquired property of his father, and his father was very
much reluctant to come and stay with him in the rented property at
Malleshwaram. Therefore on the advice of the well wishers of the
family, looking at the suffering of his father, the well wishers of the
family advised his father and sort of settlement was arrived at between
the defendants No.1 to 3 and his father on 22/02/1996. On the basis of
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the said settlement, the defendants No.1 to 3 shifted from first floor to
the ground floor. The defendant No.1 and his father decided not to live
separately as they mutually agreed to live separate for rest of their life.
Under the said settlement defendant No.1 was paid Rs.5,00,000/- and
defendants No.2 and 3 were paid Rs.10,00,000/- each by his father.
Thus in 1996 the defendants No.1 to 3 were residing in the ground
floor and his father alone was staying in the first floor. Even though his
father was staying alone in the first floor there was no peace of mind to
his father due to the ill treatment meted out by the defendants No.1 to 3
in 1994 the land lord of the premises in which he was residing at
Malleshwaram filed an eviction petition against him in HRC
No.2329/1994 which came to be allowed on 25/05/1998. Against the
said order he preferred appeal in Revision petition in HRRP
No.178/1998. The said revision petition came to be dismissed on
17/08/1998. However the court had granted time to him till February
2000 to vacate and hand over the possession to the landlord. Since he
had no other property to stay, his father asked him to come and stay
with him in the first floor i.e. suit schedule item No.1 property. Thus he
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shifted his residence to the suit schedule item No.1 in the year 2000.
His father's health deteriorated fully and hence as per the advice of the
doctor, he was constrained to shift to the ground floor and till his death
he was staying in the ground floor. The defendants No.2 and 3 after
taking the money from his father purchased the property bearing
No.173 in which they started staying separately.
41) The PW.1 further deposed that the schedule properties are self
acquired properties of his father. His father died intestate and therefore
he and defendants No.1 to 5 have got equal share in respect of the
schedule properties. The defendants No.1 to 3 with an intention to
deprive his legitimate share stated claiming that his father executed
WILL and bequeathed all his properties in favour of defendants No.1 to
3. Further they started insisting him to vacate the premises. His father
had made deposit in Global Trust Bank Limited, in two Negotiable
Certificate of Deposit bearing Nos.150254289 and 150254293 for
amount of Rs.7,00,000/- and Rs.8,00,000/- respectively. These
deposited were matured on 29/11/2000 and 11/12/2000. The defendant
No.1 made attempt to withdraw the amount without his knowledge. It
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appears the defendant No.6 requested the defendant No.1 to produce
the succession certificate for paying the amount in the name of
defendant No.1. Therefore defendant No.1 filed suit in
OS.No.15743/2001 seeking for mandatory injunction against defendant
No.6 directing the Bank to pay the amount in her favour. When the
bank refused to make payment, the defendant No.1 referred to WILL
alleged to have been executed by his father, has not produced the same
in the suit. He came to know about this and immediately made an
application in O.S.No.15743/2001 to implead him as party. In fact his
application was allowed and he was impleaded as defendant No.2 in
the said suit. The alleged WILL is concocted and created and his father
never executed any WILL. The signature on the alleged WILL must
have been forged or must have been obtained by coercion. His father
never intended to bequeath the property. In fact there relationship
between his father and defendants No.1 to 3 was not cordial. The
defendants No.1 to 3 must have created a concocted WILL only to
deprive him of his legitimate share in respect of the schedule
properties. There was no love and affection between his father and
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defendants No.1 to 3 because of the constant harassment given by
defendants No.2 to 3 to his father. That his father also filed criminal
case against the defendants No.1 to 3 and even the recitals made in the
Memorandum of understanding dated 22/02/1996 clearly shows that
there is no cordiality love and affection between his father and the
defendants No.1 to 3. In the year 1996 his father went to pilgrimage in
North Indian religious places. At that time as his health condition was
not good, he had given a letter to the Manager of Indian Bank,
Sadashivanagar Branch, Bangalore-3 nominating him in respect of the
locker maintained by him. In view of the false claim made by the
defendants No.1 to 3 he constrained to seek partition and separate
possession of 1/5th share in respect of the suit schedule properties,
which are self acquired properties of his father.
42) The PW.1 further deposed that the cause of action for the suit
arose from 18/11/2000 when his father expired and subsequently when
defendants No.1 to 3 started insisting him to vacate the premises by
concocting the story of WILL in O.S.No.15743/2001. Since he
demanded for partition and separate possession, the defendants are
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trying to take law into their own hands and trying to disturb his
possession of in respect of suit schedule item No.1 and he is seeking
injunction against defendants. His father has got several bank accounts
and particulars of those accounts are in the custody of defendant No.1
and defendant No.1 is trying to withdraw the amount in those accounts
and it appears she has already utilized part of the amount lying in those
accounts. His father advanced money to several borrowers and
defendants No.1 to 3 have realized the said amount from the borrowers.
He is entitle for share in the amount so realized. Since all the
particulars regarding these transactions are with defendants No.1 to 3,
hence he is seeking for mesne profits also. The PW.1 further deposed
that it is false to state that he is staying in the suit schedule item No.1
on leave and licence basis. He is not liable to pay any licence fee as
alleged in the written statement. The alleged khata produced by the
defendants is obtained behind back of him on the basis of concocted
WILL and same has no sanctity in law. He has not given any no
objection for transfer of khata in respect of the schedule item No.1
property solely in the name of defendant No.1. The alleged WILL is
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created by defendants No.1 to 3 to cloud equal share to him out of the
properties left behind his father. His father was suffering from serious
illness since 1996 and ultimately died on 18/11/2000. The garage
portion attached to the suit schedule item No.1 is in him occupation.
He is in occupation of the entire premises of suit schedule item No.1
including garage. The defendants after creating WILL broke open the
wall attached to the garage portion from the ground floor and started
making claim that garage is in their possession. There is no entrance to
the garage in his occupation from the ground floor. After coming know
about that he has also filed complaint and an FIR was also registered
for an offence of trespass against the defendants No.1 to 3, the counter
claim made by the defendants are all false, frivolous and vexatious. The
PW.1 prays to decree to decree the suit as prayed in the plaint and
reject the counter claim. In support of oral evidence PW.1 marked the
documents ExP1 to ExP109.
43) The PW.1/plaintiff in OS.No.2731/2002 Dinesh Singh S/o
Sampath Singh Bohra has filed his additional affidavit in lieu of
examination chief on 02/11/2010 and deposed evidence that an
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additional issue as to "Whether the property bearing No.45, 7th cross,
HMT layout, Vishweswaraiah Nagar, Gangenahalli, Bangalore is liable
for partition as contended by defendants No.1 to 3" has been framed on
13/01/2010. This particular property belongs to his wife absolutely. He
is an income tax assessee right from 1977-78. His marriage took place
with her on 24/05/1989. She has sold her jewellery, diamond and gold
and also paid income tax. The ground floor of plaint schedule 1A was
purchased by his mother's name nominally. But entire consideration
was paid by his father and it is his father's self acquired property.
Similarly another property bearing No.1, 7 th cross, 8th main Road,
Malleswaram Bangalore measuring 3000 square feet i.e. schedule 1B
property was purchased by his father in his mother's name, the entire
consideration for purchase of said properly flowed only by his father.
This property was also purchased by his father in the name of his
mother nominally. It does not belong to her absolutely and liable for
partition. The defendant No.1 always assured him that the schedule 1A
and 1B properties are belong to all the legal heirs his father and that she
would not act against the interests of any of the legal heirs. These
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properties belongs to joint family and he is entitle to 1/6th share in
these two properties. The auto finance business was being run by his
father in the name of his mother and she was only a house wife. She
had no power or authority to gift this property to the defendant No.2.
His father purchased plaint schedule 3A property in the name of
defendant No.2 nominally. His father gave sum of Rs.10,00,000/- to the
defendant No.2 and asked him to buy the said property for the joint
family. The properties mentioned in schedule 1& 1A were purchased
by his father and the property mentioned in schedule 3A is situated just
behind the properties mentioned in schedule 1& 1A, which is a single
building, both properties are adjacent to each other measuring totally
4800 square feet. His father was not well and defendant No.2 asked his
father to pay funds for purchase of schedule 3A property. His father
never believed the defendants and hence he paid and took a receipt for
this payment. The defendant No.2 does not possess absolute right over
this property and entitle 1/6th share in this property and he is entitle for
1/6th share in this property.
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44) The PW.1 further deposed that out his own funds his father
purchased plaint schedule 3B property, but sale deed registered
nominally in the name of defendants No.1 & 2. This property has been
sold to defendant No.7 by the defendants No.1 & 2 without his consent
and authority. He is entitled for 1/6th share in this property. His father
taken schedule-7 shop premises on rent. Without his consent and
approval, the defendant No.2 has handed over the premises to the
landlord after accepting Rs.10,00,000/- as compensation from the
landlord. As the defendant No.2 earning profits out of this sum of
Rs.10,00,000/-, hence he is entitle to mesne profits. Hence he is entitle
to receive 1/6th share in this sum of Rs.10,00,000/- along with mesne
profits from the defendant No.2. The PW.1 prays to decree suit in his
favour.
45) The PW.1/plaintiff in O.S.No.2731/2002 Dinesh Singh S/o
Sampath Singh Bohra has filed his additional affidavit in lieu of
examination in chief as PW.1A on 29/09/2018 and deposed evidence
that defendants have produced fabricated WILL alleged to have been
registered in the Sub-Registrar's office on 01/07/2000. He was residing
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in the first floor of the premises where in the ground floor his mother
and others were residing. On the same day on 01/07/2000 his father
was seriously ill and he got the information of his son-in-law of
Mangalchand by name Champalalji Bantia died at young age of 49
years. Mangalchand is first cousin of his father and he was a frequent
visitor to their house and he was also fast friend and close relative to
their father. He was Sampath Singh's father Lalchand Bohra's elder
brother Ganeshmal Bohra's son. His father was staying in the ground
floor under doctor's advice and he was shocked to hear the death of
Champalal at young age. Already he was not even in a position to stand
upon his feet properly due to deteriorated health conditions. But he sent
words to him to take him to the funeral ceremonies of the deceased
person. He had to take him to the residence of late Champalal Bantia
and also he had to take care of him, they were their till 4 pm. It is
customary in their community to perform "Utavana" on the 3 rd day of
death. In the lease deed dated 26/07/1970 executed by late Sampath
Singh Bohra in favour of Mahboob Beig, he signed as 'S S Bohra' and
in the agreement to sell dated 24/09/1992 late Sampath Singh Bohra
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has signed as 'S S Bohra' and in the original partnership deed dated
24/09/1998 between Sampath Singh Bohra and A.V.Anantha
Padmanabha, late Sampath Singh Bohar has signed as 'S S Bohra'. His
father used to sign all registrable documents as 'S S Bohra" and he
never used to sign in any other manner on registrable documents.
Therefore the WILL is fabricated and forged. The WILL has come into
existence under suspicious circumstances. The defendants No.1 to 3
had developed so much hatred and animosity towards him and his
family that they hated to call him as son of his parents. They had
decided to make sure that he do not get any property, either movable or
immovable belonging to his father and therefore, they have fabricated
the alleged WILL giving nothing to him. His father stayed with him for
about 9 months in 1996. He had already revealed in his evidence the
criminal antecedents of defendants No.2 & 3. Now he remembered
recently one more such criminal act of defendant No.2 and he had
obtained certified copy of FIR in Crime No.192/94 wherein defendant
No.2 has been charged with the offence of forgery and cheating. He
used to even forge signatures of his parents which criminal act was
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tacitly supported by his mother. He and his father repeatedly advise his
younger brothers in this regards. These are reasons why he came to
hated by his mother and younger brothers. In support of oral evidence
PW.1A marked ExP110 to ExP123. The plaintiff counsel got marked
ExP124 through confrontation in the evidence of DW.2.
46) The defendant No.2 in O.S.No.2731/2002 Lokesh Singh S/o Late
Sampath Singh Bohra filed his affidavit evidence in lieu of
examination in chief as DW.1 on 06/10/2007 and deposed evidence that
he is son and Power of Attorney Holder of defendant No.1 executed by
defendant No.1 in his favour on 10/11/2006. It is fact that late Sampath
Singh Bohra is husband of defendant No.1 and the father of plaintiff
and defendants No.2 to 5 and the relationship between the parties as
mentioned by the plaintiff is correct. His late father died intestate on
18/11/2000. That his father made last WILL and Testament on
01/07/2000 while he was in a sound and disposing state of mind and
health and in full control of his physical and mental faculties. His
father made his WILL of his own volition and without any coercion or
undue influence being exerted on him by any person as borne out by
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the fact that he has made fair and equal bequests to all his immediate
family members, i.e., his wife and five children, and the plaintiff is also
a beneficiary under the said WILL and has taken his share of the
property bequeathed to him there under and is how estopped from
falsely contending that his father died intestate.
47) The DW.1 further deposed evidence that said WILL was also
duly attested by two witnesses by name, N.P. Ganapathi and N.P
Subbaiah, and the same was also registered on 26/07/2000 by the Sub-
Registrar, Gandhinagar, Bangalore, as Document No.87/2000-01 at
Pages 230 to 248 in Volume 197 of Book III. There are no suspicious
circumstances surrounding the making of the said WILL and the
genuineness and validity of the WILL are beyond doubt. Thus his late
father's WILL reflects his true intention and desire in the matter of
disposition of his estate and he did not die intestate entitling the
plaintiff to claim partition of our late father's properties and assets on
the basis of alleged intestate succession.
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48) The DW.1 further deposed that his mother defendant No.1 had
filed OS.No.15743/2001 against defendant No.6 which is now clubbed
with the above suit. The subject matter of the said suit is two deposits
that his father had made with defendant No.6 when he was alive and
which are described in Schedule-4 to the plaint in this suit. His mother
had filed the aforesaid suit originally against Global Trust Bank Ltd.
Seeking the relief of a mandatory injunction directing them to give
effect to certain nominations that his late father had made with the said
Bank in respect of the Schedule-4 property. Consequent to the merger
of the said Bank with the Oriental Bank of Commerce, the plaint in the
said was amended and the said Oriental Bank of Commerce was
brought on record as defendant No.6 in the said suit vide an order dated
16/01/2006. Prior thereto his brother Dinesh Singh the plaintiff of this
suit had also impleaded himself as defendant No.2 in the said suit vide
an order dated 02/01/2002. So far as the Schedule-4 property is
concerned, his late father had deposited sum of Rs.7,00,000/- with
defendant No.6 under a certificate of deposit bearing No.150254289
dated 29/08/2000 maturing on 29/11/2000. His father had also
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deposited a further sum of Rs.8,00,000/- with defendant No.6 under a
Certificate of Deposit bearing No.150254293 dated 09/09/2000
maturing on 11/12/2000. These deposits were made during the lifetime
of my father who passed away on 18/11/2000, prior to the dates of
maturity of the Schedule 4 deposits on 29/11/2000 and 11/12/2000,
respectively.
49) The DW.1 further deposed that his late father had nominated his
mother defendant No.1 to receive the amounts of the Schedule 4
deposits with defendant No.6 when the same matured. This is admitted
by defendant No.6 at para 3 of its Written Statement in
OS.No.15743/2001. He is advised to submit that his mother as the
nominee would be entitle to receive the amounts of such matured
deposits and hold the same in trust for all the legal heirs of his late
father who would be the beneficiaries of his estate in the event he died
without leaving WILL or other testamentary disposition, i.e., in the
event of intestate succession. He is further advised to submit that extent
the stand taken by defendant No.6 in the aforesaid to that extent the
stand taken by defendant No.6 in the aforesaid suit may be correct that
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since there are legal heirs of his late father, his mother is not entitle to
receive the value of the matured deposits held by defendant No.6.
However the true and correct fact is that his father died leaving the
aforesaid WILL dated 01/07/2000 which is also registered before the
jurisdictional Sub-Registrar. In the said Will his father has made
various bequests in respect of his movable and immovable properties
and assets in favour of his mother and all his children. However his late
father did not make any specific bequests in respect of the two deposits
with defendant No.6 which are described in Schedule-4 to the plaint in
this suit for the reason that these deposits were made on 29/08/2000
and 09/09/2000, i.e., after his father had made his WILL dated
01/07/2000. However in Clause 19 of the said WILL dated 01/07/2000
his mother has been named as the residuary legatee of his father's
estate, that is to say that any specific items of his father's assets and
properties not specifically bequeathed in the said WILL would devolve
upon my mother as such residuary legatee. For easy of reference he
reproducing Clause 19 of my late father's WILL "I have recorded all
my assets in this Will and in case any movable or immovable has been
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left out by inadvertence or if any other movables or immovables which
he may acquire subsequent to this Will shall devolve on my wife
Mrs.Surekhadevi after my death".
50) The DW.1 further deposed that as on the date of death of his
father if he is in possession of any cash, jewelry, movable or
immovable properties on hand, the same shall devolve upon his wife
Surekhadevi. Accordingly the two deposits with defendant No.6
described in Schedule-4 devolved upon his mother and she is solely
entitled to receive the same as the admitted nominee thereof and to
appropriate the same to herself as the sole legatee thereof as such
deposits were made by his late father after making his aforesaid WILL
dated 01/07/2000. The Plaintiff got himself impleaded as defendant
No.2 in OS.No.15743/2001 vide an order dated 02/01/2002. That the
said suit has now been clubbed with the above suit as it is only a
residuary of the above suit. Despite knowing and being fully aware of
the subject matter of the suit in OS.No.15743/2001, the plaintiff herein
chose to file the above suit in respect of the same subject matter as
contained in OS.No.15743/2001 and has also falsely averred in para
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No.8 of the plaint in this suit stating that "There is no pending of any
legal proceedings and litigations either past or present concerning any
part of the subject matter of this plaint in any court within the
knowledge of the plaintiff". This is nothing but blatant falsehood on the
part of the plaintiff to make out a case where none exists. Except for
the house at Rajasthan described in Schedule-6 to the plaint all the
properties both movable and immovable as detailed in the Schedules to
the plaint in this suit were the self acquired properties of their late
father. That the Ground Floor of the house property situated at 8 th Main
Road, 1st Cross, Vasanthanagar, Bangalore. The First Floor of which is
described in Schedule-1 to the plaint is the self-earned property of
defendant No.1 and the said Ground Floor property, which bears
separate Municipal No.37, was purchased by defendant No.1 out of her
funds and she is the absolute owner and Khatedar of the same and the
same is in the exclusive possession of defendant No.1. That the
Schedule 1 property, i.e., the First Floor of the said house at 8 th Main,
1st Cross, Vasanthanagar, bearing Municipal No.37/1, was purchased by
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their late father from and out of his own funds and as such is self
acquired property.
51) The DW.1 further deposed that the relationship between his late
father and his mother was cordial during the lifetime of his late father.
That the plaintiff along with his family, myself and defendants No.1, 3
to 5 herein along with his deceased father lived together as Joint
Family till 26/3/1992 when the plaintiff at the instigation of his wife
abruptly and voluntarily left the Joint Family house at Kumara Park at
about 5 a.m. and started residing in a rented at Malleshwaram where he
continued to reside till February 2000. The Plaintiff then requested his
late father for temporary accommodation in the Schedule-I property
for just about three months on the ground that there was an eviction
order against him in respect of the Malleswaram house where he was
living and that the house purchased by him at R.T. Nagar required
repairs and renovations. That the plaintiff was provided with
Rs.10,00,000/- by his late father in November 1995, with an addition of
Rs.3,00,000/- from his HUF to his wife's account to purchased the said
house at R.T.Nagar. The plaintiff purchased the R.T. Nagar house for
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more than Rs.10,00,000/- and on the plea that it required repairs and
renovation sought and got leave and licence from their late father for a
three month stay in Schedule-I property, but continued to stay herein
illegally even after the death of his late father. The leave and licence
was restricted to the Schedule-I property (less two rooms) and did not
cover the garage attached to the Ground Floor, which was in the
possession of our late father and which continues to be in the
possession of defendant No.1 after the death of his father. The said
garage has also an entrance from the Ground Floor property bearing
No.37 since more than eight years. The Ground Floor bearing No.37
and the Floor bearing No.37/1, i.e., the plaint Schedule-I property are
in fact interlinked from the inside of the premises itself by common
staircase on the Ground Floor and terminating at the main entrance of
the First Floor. Thus these two premises are one composite premises
and not two separate and independent premises as sought to be made
out by the Plaintiff. Under the WILL of their late father the Schedule-I
property is bequeathed to defendant No.1 by way of a life interest
followed by the same going to defendant No.3 on the demise of
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defendant No.1 and defendant No.3 then acquiring absolute ownership
thereof. Thus on the death of our late father on 18/11/2000 the entire
Schedule-I property vested with defendant No.1 as one of the
beneficiaries of the said WILL and the plaintiffs occupation thereof
after the death of our late father is illegal and unlawful since the leave
and licence elapsed after the death of our late father and got
automatically revoked. The plaintiff is continuing to occupy the
Schedule-I property under revoked licence and defendant No.1 has
become the owner of the same under the WILL of her late husband.
Hence defendant No.1 is entitle to seek possession of the Schedule-I
property through direction by means of decree of mandatory injunction,
calling upon the plaintiff to cease using and occupying Schedule-I
property and to permit its use and occupation by defendant No.1. Thus
defendant No.1 has made counter claim n this suit seeking such other
reliefs. There was any estrangement between his mother and late
father during his lifetime. The plaintiff's allegations of non-cooperation
and quarrels between them or any of the other family members are
travesty of truth. It is false that the children of their late father were
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silenced through payments allegedly made to them by him for starting
their own businesses. They have been doing business on their own and
with their skill and enterprise commenced and developed their
individual businesses. It is false that after the marriage of defendant
No.4 these alleged differences and quarrels between the children and
the father escalated and that he was ill-treated by his children leading to
increase in his hypertension and diabetes. It is true that his father
continued to reside in the Schedule-I property and he was doing
business in the Ground Floor of the said property and it is utterly false
that he was not being provided home food and that he was getting food
from outside. The Plaintiffs repeated allegations that his children
allegedly treated their father with cruelty and the resultant mental
agony that he purportedly suffered have their origin in plaintiffs
perverse mind to create prejudice against defendants No.1 to 5. On the
other hand his late father was not at all willing to stay at any time with
the plaintiff in the plaintiffs rented house at Malleswaram, as he did not
appreciate the plaintiff's attitude and aggressive behavior towards the
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other members of his family. The plaintiff was at loggerheads with his
father and there was bad blood between them.
52. The DW.1 further deposed evidence that it was in fact the
plaintiff who all along had callous and disrespectful attitude towards
our father and is now making allegations against defendants No.1 to 5
to cover up his own familial offences. To satisfy his late father and to
prevent any deterioration in his health, and as per his wise, the plaintiff
and defendants No.1 to 5 signed what our late father told us was
Memorandum of Understanding. This Memorandum of Understanding
was to abide by our late father's wishes in the matter and out of utmost
respect for him we just signed the said document being unaware of its
contents and not at all getting any benefit or advantage there from. This
was done under pressure from certain relatives, who insisted on us
doing so on the ground that it would be in the interest of the family and
the wellbeing of our late father. However to the best of his knowledge,
the plaintiff and defendants No.1 to 5 had signed on all the sheets/pages
of the said Memorandum of Understanding and the document now
produced by the Plaintiff purporting to be the same MOU does not
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contain our signatures on all the sheets / pages. They have every reason
to believe that the Plaintiff has substituted the original document that
we signed with concocted document for the purpose of this case and to
gain an illegal unfair advantage and benefit over his late father's
properties.
53) The DW.1 further deposed evidence that there was no shifting
by defendants No.1 to 5 to the Ground Floor of the Schedule-I property
in pursuance of the alleged Memorandum of Understanding. As in the
case of the said MOU and to please their late father and to avoid any
bitterness, defendants No.1 to 3 signed receipts referring therein to
some payments, which in fact these defendants did not receive. All this
happened under the honest belief entertained by his family members
that if we did not sign, no matter we got no benefit from their doing so,
there would be disharmony and even disaster if something happened to
their late father consequent to his indifferent health. The Memorandum
of Understanding dated 22/02/1996 did not purport to create or operate
as final settlement of the properties and assets of our late father
amongst himself and his family members. The said MOU is an
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unregistered document and cannot affect the immovable properties and
assets of their late father or, indeed, any of his other properties and
assets and was never acted upon. The registered WILL dated
01/07/2000 is the final and binding testament of their late father and the
disposition of his estate must be made in accordance with the said
WILL and not in accordance with intestate succession or any prior or
proceeding document much less the unregistered MOU relief on by the
plaintiff which, as stated earlier, also does not appear to be the same
MOU that we recall signing.
54) The DW.1 further deposed that as regards the stay of the
plaintiff in the Schedule 1 property from February 2000, this was by
way of temporary licenced accommodation on the twin grounds of an
eviction order suffered by him in respect of the rented Malleshwaram
property where he was earlier staying and the non-completion of the
plaintiffs own bungalow and R.T.Nagar. The Plaintiffs stay in the
Schedule 1 property was not in his own right and plaintiff was not
accommodation in the whole of the Schedule-1 property but in the First
Floor less two rooms and the Garage in the Ground Floor. These two
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rooms contained his late father's documents and personal articles and
the Plaintiff subsequently unlocked these rooms and removed the said
articles and documents. After his late father's death the plaintiff has
occupied the other two rooms also, but the garage continues to be in
occupation of defendant No.1. In fact as stated by the Plaintiff himself
in para No.4 of the plaint, till his death our late father was residing in
the Ground Floor. The plaintiff has himself, along with his family
members, shifted out of the Schedule-1 property to his own house in
R.T.Nagar sometime in January / February 2006.
55) The DW.1 further deposed evidence that it is false that the
property bearing No.173, 1st Cross, 8th Main, Vasanthanagar was
purchased by defendants No.2 and 3 with money allegedly got from
our late father. In fact it was purchased only by himself with his own
earnings and not through any alleged payment to him by his late father.
Thus this premises bearing No.173 is my self-acquisition and it was not
acquired in the mode and manner alleged by the plaintiff.
56) The DW.1 further deposed evidence that in terms of the WILL
dated 01/07/2000 left by their late father, he bequeathed Schedule-1 of
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the plaint Schedule properties to his wife defendant No.1 to have a life
interest therein after which the same goes to defendant No.3 and the
absolute owner thereof; the Schedule-2 property is bequeathed jointly
to defendants No.4 and-5 who are the two daughters of our late father;
the Schedule 3 property have been bequeathed to the plaintiff
absolutely and he has been receiving rents from the tenant in
occupation of the same since the date of death of our late father and
this property is valuable commercial property and its present market
value is not less than Rs.10,00,000/- as stated above, Schedule-4 of the
plaint Schedule properties being the deposits with defendant No.6 has
been bequeathed absolutely to defendant No.1; the diamond bangles
described in Schedule 5 (i) and the Fiat Uno Car described in Schedule
5 (ii) have been bequeathed to defendant No.1 and the Registration
Certificate of this car has also been transferred to the name of
defendant No.1; Schedule 6 of the plaint Schedule properties which is
the ancestral property in Rajasthan has been bequeathed equally to the
three sons of their late father, viz, he, plaintiff and defendant No.3.
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57). The DW.1 further deposed evidence that as regards the S.B.A/c
No.17050 with Syndicate Bank described in Schedule 5(ii) the same is
not at all connected with his late father, but it is the personal account of
their mother/defendant No.1 and the plaintiff cannot make a claim on
the same. Their late father's personal account in Syndicate Bank
bearing S.B.A/c No.17047 had balance of Rs. 1,20,932=78ps as on the
date his death. This account also had their mother defendant No.1 as
the nominee and in terms of the WILL of their late father said amount
has gone to their mother as the legatee and beneficiary thereof. Their
father has current Account No.744 in his name as the Kartha of his
HUF with the said Syndicate Bank and this is sought to be described in
Schedule-5 (v) (d). The amount of Rs.4,30,491=35ps in this HUF
account has been withdrawn by defendant No.1 and further sum of
Rs.1,00,000/- was recovered from debtor by name Chandrakanth, who
is named in Schedule 5 (v) (b) to the plaint. As the nominee of the HUF
account defendant No.1 is ready to pay Plaintiff 1/4 th share from this
total capital of the HUF amounting to Rs.5,46,316=12ps. She has
already paid 1/4th share each from the same to defendant No.3 and to
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him and she has retained her own 1/4th share. This amount is that
described in Schedule 5 (v) (d) to the plaint. The Cash on Hand
described in Schedule 5 (iv) is actually Rs.68,057=70ps and has also
vested in their mother defendant No.1 in terms of his late father's WILL
dated 01/07/2020.
58) The DW.1 further deposed evidence that from the debtors of
his late father's business detailed in Schedule 5 (v) (a) (b) and (c), a
sum of Rs.80,000/- was recovered from one Gopal Krishna on
23/05/2001 and sum of Rs.1,32,000/- from one Chandrakanth on
12/12/2001, 04/02/2002, 13/02/2002 and 18/02/2002. No amount is
due from Guru Sastri Mutt. As regards T.N.Suresh only sum of
Rs.4.50,000/- is due from him and the same is as good as lost and non-
recoverable, as the said T.N.Suresh is absconding and his whereabouts
are not known. There is also complaint of cheating filed by their late
father against the said T.N.Suresh in the Bharatinagar Police Station.
The DW.1 further deposed evidence that the widow and all the children
of the deceased Sampath Singh Bohra have all benefited equally from
his properties and assets. In fact the plaintiff may have benefited more
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having regard to the fact that almost Rs.13,00,000/- was paid to him by
his late father in his lifetimes for the plaintiff to purchase his house in
R.T.Nagar. All the family members having benefited equally, there are
no suspicious circumstances surrounding the WILL of their late father
as none of his family members have been disinherited in the said WILL
or otherwise.
59) The DW.1 further deposed evidence that their father did not
choose to bequeath any residential property to the plaintiff or to him
since he has already funded the plaintiff in sum of Rs.13,00,000/- for
the plaintiff to purchase his house in R.T.Nagar and by them he had
also purchased the house bearing No.173 in the year 1997 itself. Thus
two of his three sons already had residential properties at the time their
late father made his WILL dated 01/07/2000. The defendant No.1
already had the Ground Floor bearing No.37 below the Schedule-I
property having, as stated above, purchased the same in her own name
and from her own funds. His younger brother defendant No.3 is
unmarried and is now aged 40 years. He had an open heart surgery in
August 1997 at young age and his father always had special affection
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for him owing to his ailment. In these circumstances, their father chose
to bequeath the Schedule-I property residential property to defendant
No.3, after the lifetime of defendant No.1 who still has life interest in
the same. Their father had spent on the marriages of his two
daughters/defendants No.4 and 5 and given cash and jewelry to them at
that time. Thus he gave them the Schedule-2 property jointly. This
clearly shows that their late father has provided for all his family
members in substantial way and to the exclusion on none and it is only
the plaintiffs agreed to snatch more than his share that has motivated
him to file this suit falsely alleging that his late father died intestate.
60) The DW.1 further deposed evidence that the allegation of the
plaintiff that the registered WILL dated 01/07/2000 of their late father
is concoction is nothing short of gross insult to the departed soul who,
through testamentary distribution of his self acquired properties,
equitably distributed the same to all his heirs in spirit of justice and fair
play. As regards some earlier minor domestic differences between their
late father and defendants No.1 and 3 and himself including criminal
complaint filed by their late father against the defendant No.3 and
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himself at the instigation of the plaintiff, these were settled long prior
to the execution of the said WILL, and the said complaint ended in 'B'
Final Report with nothing further since their late father on coming to
know of the true and correct facts brought the same to the notice of the
police himself. Thus in the face of the genuine and voluntary
disposition of all his immovable and movable properties by their late
father and his WILL having come into force after the date of his death
on 18/11/2000 the present suit seeking partition of his properties and
assets is not maintainable and the suit is liable to be dismissed.
61) The DW.1 further deposed evidence that his mother/ defendant
No.1 is entitle to seek the ejectment of plaintiff from the Schedule-I
property and also to claim damages from the plaintiff for his unlawful
use and occupation of the Schedule-I property from 18/11/2000, on
which date she acquired her right and interest in the Schedule-I
property through her late husband's WILL dated 01/07/2000 till date of
this suit and thereafter. His mother is entitle to claim sum of
Rs.2,28,000/- by way of damages or mesne profits from the plaintiff
from 18/11/2000 till the date of this suit, i.e., for period of 19 months at
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the rate of Rs.12,000/- per month as the Schedule-I property is nearly
1,300 square feet in extent, and even if let out at modest rate of about
Rs.9% per square foot the minimum monthly rent from the Schedule-I
property will be nearly Rs.12,000/- per month. Besides this defendant
No.1 is also entitle to seek an enquiry into mesne profits from the date
of this suit onwards. The DW.1 further deposed evidence that defendant
No.1, besides seeking dismissal of this suit on the ground that all the
plaint Schedule Properties of the late Sampath Singh Bohra which were
his self-acquired properties, except the Schedule-VI property, have
been validly bequeathed to his heirs, including to the plaintiff by their
late father's registered WILL dated 01/07/2000 and that nothing
remained to be partitioned after his death and as on the date of filing of
this suit, is also entitle to make the counter-claim that she has made in
her written statement. The DW.1 prays to dismiss suit of plaintiff and
decree the counter claim of defendant No.1 in this suit and decree the
claim in the clubbed suit OS.No.15743/2001 filed by defendant No.1
for mandatory injunction directing the plaintiff herein to cease using
and occupying the plaint Schedule 1 property and to permit it use and
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occupation by defendant No.1 and directing the plaintiff herein to pay
defendant No.1 herein damages in a sum of Rs.2,28,000/- for
unlawfully using and occupying the plaint Schedule property for the
period 18/11/2000 to 17/06/2002 at the rate of Rs.12,000/- per month,
and an enquiry into future mesne profits in respect of the plaint
Schedule 1 property from the date of this suit onwards and prays to
decree counter claim for mandatory injunction directing defendant
No.6 to give effect to the nomination in respect of the plaint Schedule-4
property bearing the deposits half by defendant No.6 under certificate
of deposit originally bearing No.150254289 dated 29/08/2000 for
Rs,7,00,000/- maturing on 29/11/2000 and Certificate of deposit
originally bearing No.150254293 dated 09/09/2000 for Rs.8,00,000/-
maturing on 11/12/2000, and to pay the same to defendant No.1 who is
nominee and legatee thereof and awarding costs of counter claim to
defendant No.1.
62) The DW.1 filed his affidavit in lieu of examination in chief as
additional evidence and deposed evidence that he sought permission of
court to produce 4 documents annexed to the application dated
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26/02/2019 by filing IA No.27 and the same has been allowed on
26/02/2019 itself. The 1st document is photocopy of the original
registered lease cum sale agreement entered into by his father late
Sampath Singh with the lessor society by name "The Ideal Homes Co-
operative Building Society Ltd.", which has been duly notarized. He is
not in a position to produce the original of the aforesaid document No.1
in as much as the same has been very much available with the aforesaid
society. However the duly notarized version of the said document
produced by me as document No.1 along with IA No.27 was the one
made available to me by the said society in token the original of the
said document being available with them. There is no basis in the
contention sought to be raised by the plaintiff that the said document
cannot be marked.
63) The DW.1 further deposed evidence that even otherwise it is an
admitted fact that the plaintiff himself relies upon the said document
and included the property covered under the lease cum sale agreement
in schedule 2 of the plaint. Further it is not in dispute that the said
document is registered document on the file of the Sub-Registrar,
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Bommanahalli, registered as document No.4153/77-78 and he has
already made available the said document as document No.2 in IA
No.27. That even though there is no dispute about execution of said
document by the plaintiff himself, he is relying upon the notarized
photocopy of the original document available with the lessor society.
From the said document it is clear that his father had signed the said
document as "Sampath Singh" and not as "S S Bohra" as sought to be
contended by the plaintiff. That in support of aforesaid contention that
his father used to sign on registered documents as "S S Bohra" as well
as "Sampath Singh". The DW.1 further deposed evidence that under the
circumstances started above there is no impediment to mark the
notarized document as per document No.1 and the signature of my
father contained therein. That similarly the documents 2 to 4 being the
certified copies of the public documents and are relevant to deny the
false contentions raised by the plaintiff it has become necessary for him
to produce and mark in his evidence.
64) The defendant No.2/DW.1 filed another affidavit in lieu of
examination in chief as additional evidence and deposed evidence that
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he is son and Power of Attorney Holder of defendant No.1 i.e. ExD5
since his mother is aged and unwell and unable to personally give
evidence in the above case. The contentions raised by the plaintiff by
way of amendment and introduction of additional facts are false,
frivolous and vexatious to the knowledge of the plaintiff. That the
plaintiff has raised the said contentions as an afterthought and there is
absolutely no bonafides much less the same are tenable in law. He
emphatically denied the contention of the plaintiff that properties
described in Schedule 1-A and Schedule 1-B of the plaint were
purchased by the father of the plaintiff in name of defendant No.1. In
fact his mother/defendant No.1 became the exclusive and absolute
owner in possession of the said properties on the strength of the
registered sale deeds and rectification deed executed in her name from
out of her own individual income earned by her in her automobile
business and certainly not from out of the funds alleged to have been
provided by her husband i.e., father of himself and plaintiff. In fact
defendant No.1 has been Income Tax and Wealth Tax assessee in her
individual capacity for the last 39 years and the aforesaid registered
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deeds in respect of the above said properties speak in volumes to the
fact that both the properties are indisputably the self acquisition of
defendant No.1. Under the circumstances there is absolutely no basis in
the contention of the plaintiff that the consideration for both the
properties were paid by his father and that defendant No.1 could not
deal with the said properties on her own in any manner and the said
contentions are false. The defendant No.1 being absolute owner in
possession of plaint schedule-1A property has gifted the same in favour
of defendant No.3 under registered Gift Deed on 23/01/2007.
65) The DW.1 further deposed evidence that he denied the
contention of the plaintiff that the property described in schedule-3A of
the plaint has been purchased by late Sampath Singh in his name
nominally and that the entire consideration for the same has been paid
by him/plaintiffs father. That the aforesaid property has been acquired
by him out of his own individual income earned by him in my
individual business of automobile finance and become the absolute
owner in possession of the same on the strength of registered sale deed
dated 25/01/1997. That it is undisputed fact that he is income tax
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assessee for the last 23 years and he acquired the aforesaid property
comprised in schedule-3A of the plaint out of his own income. The
plaintiff has no iota of material to show that the said property has been
purchased in his name by his father nominally and as such there is no
basis in the contention that the plaintiff is entitle for share in the
property. There is no basis in the imaginary plea of the plaintiff that the
joint acquisition of the defendant No.1 and him with respect to
schedule-3B of the plaint has been again financed by his father and the
said contention is hereby false. That when defendant No.1 and him are
income tax assesses for the last several years having individual income
of their own, there was no necessity whatsoever for them to seek
finance from their father and as such, it is only the figment of
imagination of the plaintiff that he is entitle to 1/6 th share in said the
plaint schedule-3B property and the said claim of the plaintiff is hereby
false. That even otherwise said property has been sold by him in the
year 2002 to the knowledge of the plaintiff and the very fact that the
plaintiff did not raise his little finger with respect to joint acquisition of
the same in the year 1995 by him and his mother disposed off the same
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in the year 2002, would further speak in volumes to the fact that the
claim now sought to be put forward by the plaintiff with respect to the
said property is an afterthought and obviously in order to harass and
tease them. The plaintiff tries to approbate and reprobate in his
contentions regarding the very execution of the WILL. In one breath
plaintiff contends that his father died intestate and that he did not
execute WILL relied upon by them and in another breath for the sake of
taking undue advantage of the situation the plaintiff claims 1/6 th share
in the compensation amount alleged to have been received by me from
the owner of the premises bearing No.100, Subedhar Chatram Road,
Bangalore-560020.
66) The DW.1 further deposed evidence that the very dual contention
of the plaintiff in this regard WILL lend support to the authenticity,
genuineness, truthfulness and execution of WILL relief upon by us in
his written statement. He denied the allegation of plaintiff that he has
received any compensation from the owner of the aforesaid premises
much less sum of Rs.10,00,000/- as contended by the plaintiff. In fact
pursuant to the terms of WILL, he alone was treated as a tenant of the
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aforesaid premises by the owner of the said premises by receiving the
monthly rental of Rs.60/- per month and since the premises in question
was not useful to him, he was constrained to surrender the same in
favour of his landlord who instituted suit OS.No.6971/2005 for
eviction of the premises as against him alone and for consequential
relief of mesne profit at the rate of Rs.1,500/- p.m. The DW.1 further
deposed evidence that under the circumstances stated above claim of
the plaintiff to an extent of his alleged 1/6 th share being Rs.1,66,666/-
together with interest at the rate of 18% p.a. is false, frivolous and most
speculative in nature. The DW.1 prays to dismiss the suit of plaintiff
with exemplary costs.
67) The defendant No.2 in O.S.No.2731/2002 examined the witness
N.P. Ganapathy S/o Poovaiah as DW.2, he filed his affidavit in lieu of
examination in chief on 01/04/2017 and deposed evidence that he know
Sampath Singh Bohra since about 1978. The said Sampath Singh Bohra
executed WILL on 01/07/2000 before Sub-Registrar, Gandhinagar,
Bangalore. He learnt that the said WILL was drafted by an advocate N.
Jayaprakash Roa in terms of the instructions of Sampath Singh Bohra.
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As per the request of the Sampath Singh Bohra he offered to act as one
of the attesting witness to the said WILL and in that connection, he had
attended the Sub-Registrar Office, Gandhinagar, Bangalore on
01/07/2000 along with his brother N.P.Subbaiah who also offered
himself to act as one of the attesting witness to the WILL proposed to
be executed by the said Sampath Singh Bohra. He is well acquainted
with the signature of the executant of the said WILL. The said Sampath
Singh Bohra at the time of execution of WILL was in sound disposition
of mind and was able to understand the contents of the WILL and has
signed and executed the WILL on 01/07/2000 at the office of Sub-
Registrar Gandhinagar, Bangalore in his presence and he had seen the
said executant Sampath Singh Bohra affixing his signature on the said
WILL registered before the Sub-Registrar, Gandhinagar, Bangalore.
That even his brother as one of the attesting witness to the said WILL
has also seen the said executant affixing his signature in his presence.
The DW2 in his further examination in chief identified ExD4 registered
WILL, ExD4(a) is his signature on the WILL and also 23 signatures as
signatures of Sampath Singh Bohra and said signatures are marked as
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ExD4(b) to ExD4(x). The plaintiff counsel got marked complaint copy
at ExP124 and ExP125 through confrontation to this witness.
68) The defendant No.2 in OS.No.2731/2002 examined witness N.
Jayaprakash Rao S/o late L.Krishnojirao, Advocate as DW.3. That
examination in chief evidence of DW.3 was recorded by this court on
04/07/2017. The DW.3 deposed evidence in his examination in chief
that he is practicing advocate since 1980. He has drafted ExD4 WILL
on 01/07/2000. After drafting the WILL ExD4 he went to Sub-Registrar
Office and got it registered. One Sampath Singh the testator of the
WILL came to him and discussed with him about his intention to
execute WILL, accordingly he drafted the WILL as per the instructions
of Sampath Singh and got it registered. He can identify the signature of
the testator found on ExD4. He had subscribed his signature as scribe
to ExD4.
69) The plaintiff of OS.No.15743/2001 Surekhadevi is defendant
No.1 in OS.No.2731/2002. The said plaintiff in OS.No.16743/2001
Surekhadevi has to prove the plaint allegations that she is the only
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nominee for the deposits of amount of Rs.7,00,000/- and Rs.8,00,000/-
kept in the defendant No.1 Bank by her husband and she alone is entitle
to receive the said amount as prayed in the plaint. But said plaintiff
Surekhadevi has personally not examined, but she is defendant No.1 in
OS.No.2731/2002 and her son defendant No.2 examined as GPA of
said Surekhadevi in common in both suits as DW.1.
70) Further plaintiff of OS.No.2731/2002 Dinesh Singh is defendant
No.2 in OS.No.15743/2001, he deposed in common as PW.1 as
discussed above, his contention that the suit schedule properties are
undivided Hindu joint family properties and all the properties he is
having 1/6th share. In support of oral evidence PW.1 marked ExP1 to
ExP125. The ExP1 is death certificate of Sampath Singh S/o
L.C.Bohra, as per it he died on 18/11/2000. The ExP2 is certified copy
of sale deed dt.11/11/1992 as noted in deposition of PW.1, it is one
page document and it's half portion is cut off and only half page is
available and not in condition to read the document. The ExP3 is
memorandum of settlement dt.22/02/1996 between Sampath Singh S/o
L.C.Bohra and his wife Surekhadevi, children Dinesh Singh, Lokesh
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Singh, Rajesh Singh, Anupama, Sushma. The ExP4 is certified copy of
order in HRRP No.1178/1998 of Hon'ble High Court of Karnataka
Bangalore, which was filed by Dinesh Singh against Naresh Gupta
against the order dt.25/06/1998 passed in HRC No.23291994 on the
file of Xth Addl.Small Causes, Judge Bangalore allowing the petition
filed U/s 21(i) (h) & (p) of Karnataka Rent Control Act. The ExP5 is
Gas connection voucher.
71) The ExP6 is copy of complaint lodged by Sampath Singh
against his second son Lokesh Singh and third son Rajesh Singh in
High Grounds Police Station Bangalore and ExP7 is copy of FIR in
Cr.No.73/1996 registered by High Grounds police station Bangalore
against Lokesh Singh and Rajesh Singh on complaint of Sampth Singh
for offence punishable U/S 380 IPC. The ExP15 is Udayavani news
paper cuttings dt.07/02/1996 about publication of complaint given by
Samapth Singh against his sons Lokesh Singh and Rajesh Singh for
theft of gold and cash in his house.
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72) The ExP8 is encumbrance certificate from 01/04/1996 to
31/03/2002 relating property Corporation No.135/91, old No.39/9. The
ExP9 is encumbrance certificate from 01/04/1992 to 31/03/2002
relating to property Ist floor portion of Corporation No.39/1 on site
No.155, 8th main road, Vasanth Nagar West Bangalore with garrage in
the ground floor (40' X 60'). The ExP10 is encumbrance certificate
from 01/04/1977 to 31/05/1999 relating to Site No.314-E in the name
of Sampath Singh Bohra. The ExP11 is encumbrance certificate from
01/06/1989 to 31/03/2002 relating to site No.314-E of Ideal Homes Co-
operative Society Limited, Kenchenhalli and Halagevaderhalli, Kengeri
Taluk, Bangalore South.
73) The ExP12 is income assessment records relating to Sampath
Singh for the year 1999-2000, 2001-2002. The ExP13 is certified copy
of order on IA U/o I Rule 10 R/w Sec 151 CPC in OS.No.15743/2001.
The ExP14 is copy of complaint given by Dinesh Singh against Lokesh
Singh and Rajesh Singh in High Grounds Police Station Bangalore.
The ExP16 to ExP19 are photos of house property. The ExP20 is letter
copy addressed to Manager of Andhra Bank, Sadashivnagar Branch
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Bangalore by Sampath Singh Bohra intimating that he is going for
pilgrimage and authorized his son Dinesh Singh to operate the locker.
The ExP21 is broacher of Global Trust Bank. The ExP22 is receipt
regarding receipt of Rs.10,00,000/- by Lokesh Singh from his father
Sampath Singh in pursuance of the MOU signed by him on
22/02/1996. The ExP23 is receipt regarding receipt of Rs.10,00,000/-
by Rajesh Singh from his father Sampath Singh in pursuance of the
MOU signed by him on 22/02/1996. The ExP24 is receipt regarding
receipt of Rs.10,50,000/- by Anupama from his father Sampath Singh
in pursuance of the MOU signed by him on 22/02/1996. The ExP25 is
receipt regarding receipt of Rs.5,00,000/- by Surekhadevi from his
father Sampath Singh in pursuance of the MOU signed by him on
22/02/1996.
74) The ExP26, ExP27, ExP28, ExP29, ExP30 are income tax
documents relating to Mala Munot D/o M.L.Munot. The ExP31,
ExP32, ExP33 are income tax documents relating to Mala Bohra. The
ExP34, ExP35, ExP36, ExP37, ExP38 are income tax documents
relating to Mala Munot D/o M.L.Munot. The ExP39, ExP40, ExP41,
123
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ExP42, ExP43 ExP44, ExP45, ExP46, ExP47, ExP48, ExP49, ExP50,
ExP51, ExP52, ExP53, ExP54, ExP55, ExP56, ExP95, ExP96, ExP97,
ExP98, ExP99, ExP100, ExP101 are income tax documents relating to
Mala Bohra. The ExP57, ExP58, ExP59, ExP60, ExP61, ExP62, ExP63
are income tax documents relating to Mala Munot D/o M.L.Munot.
75) The ExP64, ExP65, ExP66, ExP67, ExP68, ExP69 are Wealth
Tax documents relating to Mala Munot D/o M.L.Munot. The ExP70,
ExP71 are Wealth Tax documents relating to Mala Bohra. The ExP72,
ExP73, ExP74, ExP75, ExP76, ExP77, ExP78 are Income Tax
documents relating to Mala Munot D/o M.L.Munot. The ExP79 is letter
toM.L.Munnot by Chartered Accountant. The ExP80, ExP81, ExP82
are profit and loss account statement of Miss. Mala Munot, M/S
Sensmal Abhaikumar Munot, No.9A, Kothaval Station Street,
Chidambaram. Wealth Tax documents relating to Mala Munot D/o
M.L.Munot. The ExP83, ExP84 are profit and loss account statement
of M/s Mala Bohar, No.9A, Kothaval Station Street, Chidambaram.
The ExP85, ExP86 ExP87, ExP88, ExP89, ExP90, ExP91, ExP92 are
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profit and loss account statement of Smt.Mala Bohra, A-24, 6 th Floor,
Jayanti Apartments, 13th cross, 4th main, Malleswaram, Banagalore.
76) The ExP93 is Marriage invitation card of Dinesh Singh and
Mala. The ExP102 is certified copy of sale deed executed by Ramarao
S/o late Subbarao in favour of Mala Bohra W/o Dinesh Singh on
08/12/1995 in respect of property bearing Site No.45 measuring as
extent of East-West: 60 feet and North-South 40 feet situated at 7 th
cross, HMT layout Vishweswaraih Nagar Bangalore. The ExP103 is
letter by Corporation Bank, Malleswaram Bangalore to Mala Bohra.
The ExP104 is purchase bill relating to purchase of gold by Mala
Bohra in Devda Jewellers, Avenue Road, Bangalore on 07/12/1995.
The ExP105 is voluntary disclosure of gold purchased to income tax
department. The ExP106 is purchase bill relating to purchase of
Diamonds by Mala Bohra at Surat on 12/01/1998. The ExP107 is
purchase bill relating to purchase of gold by Mala Bohra.
77) The ExP108 is deposit certificate of amount in global Trust
Bank Limited amounting to Rs.8,00,000/- in the name of Sampath
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Singh and there is note on it that amount paid on 24/03/2003 as per
court order. The ExP109 is deposit certificate of amount in global Trust
Bank Limited amounting to Rs.7,00,000/- in the name of Sampath
Singh and there is note on it that amount paid on 24/03/2003 as per
court order.
78) The ExP110 is publication about death of Champalal Banti on
01/07/2000in Rajsthan News paper on 03/07/2000 and ExP111 is its
typed relevant portion. The ExP12 is publication about death of
Sampath Singh in Rajsthan News paper on 20/11/2000 and ExP113 is
its typed relevant portion.
79) The ExP114 is lease deed executed by Sampath Singh Bohra to
Maheboob Beig S/o Ibrahim Beig in respect of property bearing
No.135/91 (old No.39/9) situated at Seshadripuram Bangalore,
ExP114(a) to ExP114(e) are signatures of Sampath Singh Bohra. The
ExP115 is certified copy of application filed in O.S.No.6777/1997 of
CCH-24 and ExP116 is certified copy of judgment and decree in
OS.No.6777/1997 of CCH-24. The ExP117 is letter by S.S.Bohra to
126
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Deputy Commissioner, Indira Nagar Bangalore. The ExP118 is
unregistered agreement to sell executed by Susheelamma W/o Late N.
Shivananjappa in favour of S.S.Bohra S/o late L.C.Bohra on
24/09/1991 relating to property bearing No.155, New No.37A situated
at 8th main road, Vasanthnagar, Corporation, Division No.71,
Bangalore. The ExP120 is partnership deed dt.24/07/1998 between
S.S.Bohra and A.V.Ananth Padmanabh S/o late Venkatesh for running
business of export and import of Granties, Marbles, Other stones,
Minerals, general merchandise in the name and style M/s Arun Arjun
Exports, where in Sampath Singh Bohra signed as S.S.Bohra and his
signatures are marked as ExP120(a) to ExP120(e). The ExP121 and
ExP122 are two envelops. The ExP123 is intimation about death of
Sampath Singh Bohra on 01/07/2000. The ExP124 is copy of
Complaint by N.P.Ganapathy to High Ground Police Station on
20/02/2007. The ExP125 is 'B' extract of vehicle No.CAB-6686.
80) The defendant No.1 to 3 of OS.No.2731/2002 is taken
contention in their written statement property situated at Bilara village,
Jodhpur District, Rajasthan is only the ancestral property of Sampath
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Singh Bohra and other suit properties are self acquired properties of
Sampath Singh Bohra and said Sampath Singh Bohra executed WILL
relating said properties, hence plaintiff Rajesh Singh is not entitle for
share in all those properties. The defendant No.2 Lokesh Singh
examined as DW.1 as discussed above and marked ExD1 to ExD181.
The ExD1 is certified copy of deposition of Dinesh Singh in HRC
No.2329/1994 of Small Causes Court Bengaluru. The ExD2 is certified
copy of 'B' report in Cr.No.72/06 of High Grounds Police Station
Bangalore. The ExD3 is certified copy of sale deed dt.10/02/2003
executed by A Sukumar S/o late A Bhima Bhat in favour of Dinesh
Singh S/o late Sampath Singh in respect of residential immovable
property being an apartment bearing No.FF-3, assigned Corporation
No.39/6 in the first floor of the residential complex known as "Kings
Cliff" constructed on the property bearing Corporation No.39 (Old
No.34) situated at Millar Road, Benson Town, Bangalore in corporation
ward No.92 comprising of 1407 square feet. The ExD4 is original
WILL dt.01/07/2000 and ExD7 is certified copy of said WILL. The
ExD5 is power of attorney executed by Surekhadevi W/o Sampath
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Singh in favour of her son Lokesh Singh. The ExD6 is complaint given
by Surekhadevi W/o late Sampath Singh against Dinesh S/o Sampath
Singh and his wife Mala.
81) The ExD8 is letter of undertaking by Dinesh Singh to his father.
The ExD9 is copy of registration of vehicle No.KA-04/P-3817 in the
name of Sampath Singh Bohra. The ExD10 is driving license of
Sampath Singh Bohra. The ExD11 is certified copy of sale deed
dt.22/08/1992 executed by Susheelamma W/o late Shivanajappa in
favour of Surekhadevi W/o Sampath Singh in respect of property
bearing corporation No.37/1, measuring 12.81 Squared with the garage
on the ground floor (facing north) built on site No.155, measuring East
to West 40 feet and North to South 60 feet, 8th Main Road,
Vasanthanagar West Extension, Bangalore 560 052 with an undivided
interest in the site bearing No.155 bounded on East by site bearing
No.154, West by 30 feet cross road, North by 40 feet Road and South
by Site No.173 i.e. Schedule-I property of OS.No.2731/2002. The
ExD12 and ExD13 are certified copy of sale deed dt.11/11/1992
executed by Susheelamma W/o late Shivanajappa in favour of Sampath
129
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Singh Bohra in respect of property bearing corporation No.37, 1 st cross,
8th Main Road, Vasanthanagar West, Bangalore 52 measuring 12.81
squares with the garage facing west site measuring 60" x 40" with an
undivided 50% in the site bearing No.155 bounded by East: Property
No.154, West: 30 feet cross road, North: 40 feet road, South: Property
No.173 i.e. Schedule-IA property of OS.No.2731/2002. The ExD14
and ExD15 are Bank Account extracts in the name of G.L.Bohra and
sons and Sampath Singh Bohra. The ExD16 is Uttar Patra issued by
Assistant Revenue officer, Shivajinagar, Bangalore relating to property
No.37/1, 8th main road, Vasantnagar, Ward No.78, Bangalore in the
name of Surekhadevi and ExD17 is receipt regarding fees paid by
Surekhadevi for transfer of property No.37/1 in her name. The ExD18
is income tax document dt.24/10/1977 in the name of Surekhadevi. The
ExD19 is wealth tax document dt.08/09/1982 in the name of
Surekhadevi. The ExD20 is profit and loss account for the year 2000-
2001, ExD21 is taxable income tax statement in the name of Sampath
Singh. The ExD22 is profit and loss account for the year 2000-2001,
ExD23 is Saral income form No.20 of Sampath Singh for the
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assessment year 2000-2001. The ExD24 is Saral income form No.20 of
Sampath Singh for the assessment year 2001-2002. The ExD25 is profit
and loss account statement for the year 2000-2001, ExD26 is profit and
loss account statement for the year 2001-2002. The ExD27 is Saral
income form No.20 of Sampath Singh for the assessment year 2000-
2001.The ExD28 is Saral income form No.20 of Sampath Singh for the
assessment year 2000-2001. The ExD29 is valuation slip about
Jewellary purchased by Surekhadevi.
82) The ExD30 is copy of letter received from High Grounds Police
Station regarding the deposit of Pistol. The ExD31 is pass book of
Syndicate Bank in the name of Surekhadevi. The ExD32 to ExD35 are
daily account books. The ExD36 is letter dt.22/11/2000. The ExD37 is
death summary of Sampath Singh issued by Garden City Hospital
Private Ltd., Jayanagar, Bangalore. The ExD38 is letter dt.10/09/2000
issued by Global trust Bank Limited., Bangalore to Sampath Singh,
where in it is intimated that Surekhadevi is registered as nominee under
No.2702 and 2792 for the deposits amount 1. Deposit No.150254289
of Rs.7,00,000/- 2. Deposit No.150254293 of Rs.8,00,000/-. The
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ExD39 and ExD40 are postal receipts and ExD41 is acknowledgment.
The ExD42 is copy of complaint by Surekhadevi to High Grounds
Police station Bangalore against her son Dinesh. The ExD43 is certified
copy of deposition of Sampath Singh Bohra in HRC No.10414/1998 of
Small Causes Court Bangalore.
83) The ExD44 is certified copy of sale deed dated.08/12/1995
executed by Ramarao S/o late S5 ubbarao in favour of Mala Bohra
W/o Dinesh Singh in respect of property bearing Corporation No.45
situated at HMT layout, 7th cross, formed by the Hindustan Machine
Tools Employees Co-operative House Building Society limited at
Vivsweswaraiah Nagar Gangenhalli, Bangalore. The ExD45 is profit
and loss account statement for the year 1996-1997 relating to Lokesh
Singh, ExD46 is profit and loss account statement for the year 1997-
1998 relating to Lokesh Singh, ExD47 is profit and loss account
statement for the year 1996-1997 relating to Sampath Singh. The
ExD48 is certified copy of plaint and ExD49 and ExD50 are certified
copies of Vakalats in OS.No.6777/1997 of City Civil Court Bangalore.
132
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84) The ExD51 is letter issued by Syndicate Bank, Vasanthnagar,
Bangalore. The ExD52 is 'B' final report in Cr.No.209/2000 of High
Grounds Police Station Bangalore, as in the said case FIR was
registered against Lokesh Singh and Rajesh Singh. The ExD53 is
discharge summary of Rajesh Singh from the Bangalore Heart Hospital
Bangalore. The ExD54 is letter by Surekhadevi to Global Trust Bank
Limited Bangalore stating that she is nominee of her late husband
Sampath Singh for deposit amount of Rs.7,00,000/- and Rs.8,00,000/-
and ExD55 and ExD56 are attested copies of said fixed deposits
receipts. The ExD57 and ExD58 are letters issued by Global Trust
Bank Limited to Surekhadevi and ExD59 is legal opinion of advocate
relating the amount claimed by Surekhadevi in the Global Trust Bank
Limited as nominee of her husband Samapth Singh. The ExD60
unsigned legal notice issued by advocate marked subject to objection.
The ExD61 is acknowledgement regarding receipt of notice.
85) The ExD62 is income tax document dt.24/10/1977 in the name
of Surekhadevi. The ExD63 to ExD67 are notice of demand under
section 30 of Wealth Tax Act to Surekhadevi. The ExD68 to ExD76 are
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receipts of Wealth Tax. The ExD77 to ExD99 are documents relating to
income tax of Surekhadevi. ExD100 to ExD106 are income tax
documents of Lokesh Singh. The ExD107 is sale deed dated
21/04/1975 executed by Parvathamma W/o S.N.Ajjampur in favour of
Surekhadevi D/o Dasaratha Singh and W/o Sampath Singh in respect
of property bearing corporation No.1 (formerly 1/1 and prior to it
No.494) situated at 8th Main Road, Malleshwaram, Bengaluru i.e. the
suit schedule 1(B) property of OS.No.2731/2002. The ExD108 is
Mortgage Deed executed by Parvathamma W/o late S.N. Ajjampura in
favour of S. Subhadra D/o K. Venkataramaiah W/o N. Sundarraj on
22/09/1972 in respect of property bearing Corporation No.1/1 (old
No.494) situated at 8th main Malleshwaram, Bengaluru. The ExD109 is
certified copy of Sale Deed dated 25/01/1997 executed by Meenakshi
Ammal W/o late Muthukali Chettiar in favour of Lokesh Singh S/o
Sampath Singh (defendant No.2 in OS.2731/2002) in respect of
property bearing present Municipal No.173/13, 173/13(a), 173/13(b),
now 13, 13/1 and 13/2 being the ground, first and second floor situated
at Vasanthnagar West Extension, Bengaluru, corporation division
134
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No.71 ward No.78, i.e. suit schedule 3 (a) property in
OS.No.2731/2002.
86) The ExD110 is certified copy of Gift deed dated 23/01/2007
executed by Surkhadevi W/o Sampath Singh Bohra (defendant No.1 in
OS.No.2731/2002) in favour of Rajesh Singh S/o Late Sampath Singh
Bohra (defendant No.3 in OS.No.2731/2002) in respect of property
bearing Corporation No.37 (Unique PID No. 78-109-37), 8th Main,
Vasanthnagar, Bengaluru measuring 1061 square feet and built in site
No.155 i.e. suit schedule one property in OS.No.2731/2002. The
ExD111 is Uttara pathra issued by Assistant Revenue Officer entering
name of Lokesh Singh relating to property Nos.13, 13/1, 13/2,Ward
Number 78, 1st Cross, Vasanthnagar, Bengaluru i.e. suit schedule item
No.3(a) of OS.No.2731/2002. The ExD112 is katha certificate relating
to property bearing municipal No.1 (old No.49/a, 8 th main, Mallesaram,
Bengaluru in the name of Surekhadevi/defendant No.1 in
O.S.No.2731/2002 i.e. in respect of suit schedule item No.1(b) of
O.S.No.2731/2002.
135
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87) The ExD113 is certificate issued by State Bank of Mysore
regarding payment of interest of Rs.3,00,000/- on fixed deposit to
Surekhadevi. The ExD114, ExD115 are Life Insurance Corporation of
India loan payment vouchers in the name of Surekhadevi. The ExD116
is acknowledgement. The ExD117 is Account Statement extract of
Lokesh Singh in Canara Bank, K.P.West, Bengaluru. The ExD118 is
endorsement issued by Assistant Regional Transport Officer, Bengaluru
West, Rajajinagar relating to the vehicle of Surekhadevi. The ExD119
to ExD174 are documents relating to vehicle of Surekhadevi & Lokesh
Singh.
88) The ExD175 is original sale deed dated 22/08/1992 executed by
Sushilamma W/o late N. Shivananjappa in favour of Surekhadevi W/o
Sampath Singh in respect of property No.37 measuring 12.81 squares
with the garage in the ground floor, built on site No.155 measuring East
to West:40 feet, North to South: 60 feet, 8 th main road, Vasanthnagar
West Extension, Bengaluru with an undivided interest of 50% in the
vacant site bearing No.165 i.e. suit schedule item No.1 of
OS.2731/2002 and ExD176 is correction sale deed executed by said
136
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Common Judgment C /w O.S.No.2731/2002
Sushilamma in favour of said Surekhadevi rectifying the corporation
number as 37/1 instead of corporation No.37. The ExD177 is original
sale deed dated 11/11/1992 executed by Susheelamma W/o late
Shivananjappa in favour of S.S.Bohra S/o late L.C.Bohra in respect of
portion of property bearing Corporation No.37 and 37/1 measuring
12.81 squares with the Garage in the ground floor i.e. measuring East
to West: 40 feet and North to South: 60 feet, 8 th Main road,
Vasathanagar, West Extension, Bengaluru-52 with an undivided
interest in the site bearing No.155 i.e. suit schedule-I property in
OS.2731/2002. The ExD178 is document relating to Income Tax
payments by Lokesh Singh Bohra.
89) The ExD179 is Lease cum Sale Agreement dated 16/12/1977
executed by Sampath Singh Bohra in favour of the Ideal Homes Co-
operative Building Society Ltd., No.35/1, Cunningham Road,
Bengaluru. The ExD180 is Thumb Impression Register extract relating
to Sampath Singh. The ExD181 is certified copy of judgment in
OS.No.1782/94 of 8th Addl. City Civil & Sessions Judge, Bengaluru
CCH-15 which was filed by B.H.Murthy S/o Hanumantharayappa
137
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Common Judgment C /w O.S.No.2731/2002
against B. Anjini @ B. Anjanappa S/o Bylappa and Lokesh Singh,
Financier (Automotives) for declaration and permanent injunction
relating to Ambassador Luxury taxi bearing Reg.No.CAA-7074 and
said suit was dismissed.
90) The plaintiff counsel in OS.No.2731/2002 argued and filed
written arguments and relied upon the decisions reported in
(2010) 5 Supreme Court Cases 274
S.R.Srinivasa and others V/s S.Padmavathamma
A. Succession and Inheritance-Will-
Admission-Legal position with regard to
admission and evidentiary value thereof,
summarized-Held- admission about making of
will does not amount to admission of due
execution and genuineness of will-Hindu
Succession Act, 1956-S. 30-Succession Act
1925-S.63-Evidence Act 1872 Ss. 17, 58 and 68.
B. Succession and Inheritance - Will - Proof of
execution of - Mode and manner of proof and
legal provisions governing it - Legal position
summarized - Hindu Succession Act, 1956 - S.
138
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
30 - Succession Act, 1925 - S. 63 - Evidence
Act, 1872, S. 68
C. Hindu Succession Act 1956-Ss. 30, 15 and
Sch.-Will-Proof of execution of-Examination of
scribe of will who had not signed the will with
intention to attest, held, not sufficient to satisfy
the statutory requirement of examination of at
least one attesting witness for proving the will-
Succession Act 1925-S.63-Evidence Act 1872-
S. 68
In the Supreme court of India
Civil Appeal No.7434 of 2008
(Arising out of SLP (c) No.17161 of 2006)
Lalitaben Jayantilal Popat ersus V/S
Pragnaben Jamnadas Kataria and others
Although Section 63 of the Succession Act
requires that a will has to be attested at least by
two witnesses, Section 68 of the Evidence Act
provides that a document, which is required by
law to be attested, shall not be used as evidence
until one attesting witness at least has been
examined for the purpose of proving its due
execution if such witness is alive and capable of
giving evidence and subject to the process of the
court. In a way section 68 gives a concession to
139
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
those who want to prove and establish a will in a
court of law by examining at least one attesting
witness even though will has to be attested at least
by two witnesses mandatorily under section 63 of
the Succession Act. But what is significant and to
be noted is that one attesting witness examined
should be in a position to prove the execution of a
will to put in other words, if one attesting witness
can prove execution of the will in terms of Clause
(c) of Section 63, viz., attestation by two attesting
witnesses in the manner contemplated therein, the
examination of other attesting witness can be
dispensed with. The one attesting witness
examined, in his evidence has to satisfy the
attestation of a will by him and the other attesting
witness in order to prove there was due execution
of the will. If the attesting witness examined
besides his attestation does not in his evidence,
satisfy the requirements of attention of the will by
other witness also it falls short of attestation of
will at least by two witnesses for the simple reason
that the execution of the will does not merely
mean the signing of it by the testator but it means
fulfilling and proof of all the formalities required
140
O.S.No.15743/2001
Common Judgment C /w O.S.No.2731/2002
under section 63 of the Succession Act. Where one
attesting witness examined to prove will under
section 68 of the Evidence Act fails to prove the
due execution of the will then the other available
attesting witness has to be called to supplement his
evidence to make it complete in all respect. Where
one attesting witness is examined and he fails to
prove the attestation of the will by the other
witness there will be deficiency in meeting the
mandatory requirements of section 68 of the
evidence Act."
(2013) 8 SCR 173
M.B. Ramesh (D) by LRS. Vs. K.M.Veeraje URS (D)
By LRS. & ORS.
Evidence Act 1872-Sec 68 and 71-Proof of
execution of Will-Suit on the basis of a Will-
Trial court and first appellate court dismissed
the suit holding that the Will was not proved
as it did not fulfill the requirement of S.63(c)
of Succession Act-High Court in second
appeal decreed the suit-Held: In the facts of
the case, the 'Will' can be said to have been
proved with the aid of other evidence of
attendant circumstances which is permissible
141
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Common Judgment C /w O.S.No.2731/2002
U/s 71-Suit decreed-Succession Act 1925-
S.63(c).
Will: Examination of Will-Role of court-
Held: Role of the court is limited to examining
whether the instrument propounded as the last
Will of the deceased is or is not that by the
testator, and whether it is product of free and
sound disposing mind.
Proof of Will-Standard of evidence-Held: A
Will has to be proved like any other document,
except that the evidence should additionally
satisfy the requirements of S.63 of Succession
Act and of S.68 of Evidence Act-Succession
Act 1925-S.63-Evidence Act 1872-S.68.
Code of Civil Procedure 1908-S.100-Second
appeal-Scope of-Held: Second appeal can be
entertained even on the question of fact-
Whether a particular question is a substantial
question of law, depends on facts and
circumstances of each case- Construction of a
document of title or the document which is
foundation of the rights of parties, raises a
question of law.
142
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Common Judgment C /w O.S.No.2731/2002
HELD: A Will, has to be executed in the
manner required by S.63 of the Succession Act
1925. Section 68 of the Evidence Act requires
the Will to be proved by examining at least
one attesting witness. Section 71 of the
evidence Act is another connected section
"which is permissive and an enabling section
permitting a party to lead other evidence in
certain circumstances", and in a way reduces
the rigour of the mandatory provision of
section 68. Section 71 is meant to lend
assistance and come to the rescue of a party
who had done his best, but would otherwise be
let down due execution by other evidence are
not permitted. At the same time, the section
cannot be read to absolve a party of his
obligation under section 68 of the Evidence
Act read with Section 63 of the Succession
Act to present in evidence a witness, though
alive and available.
91) The defendants No.1 to 3 counsel in OS.No.2731/2002 argued
and filed written arguments and relied upon the decisions reported in
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AIR 1954 SC 280
Ishwardeo Narain Singh V/S Smt.Kamta Devi and others
(a) Succession Act (1925) S.222 -Jurisdiction of
Probate Court.: The Court of Probate is only
concerned with the question as to Whether the
document put forward as the last will and
testament of a deceased person was duly
executed and attested in accordance with law and
whether at the time of such execution the testator
had sound disposing mind. The question whether
a particular bequest is good for bad is not within
the purview of the probate court. (Para 2) Anno:
Succession Act, S. 222.
AIR 1962 Andhra Pradesh 178
Ryali Kameswara Rao V/s Bendapurdi Suryaprakasarao and others
(A) Succession Act (39 of 1925), S.283, S.63-
proof of will-Onus-Nature of proof-
Propounder writing the will and taking
benefit under it-Effect defendant setting up
will - Onus. The onus probandi lies in every
case upon the party propounding a will and he
must satisfy the conscience of the Court that the
instrument so propounded is the last will of a
free and capable testator. If a party writes or
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prepares a will under which he takes a benefit,
that is a circumstance that ought generally to
excite the suspicion of the Court and calls upon
it to be vigilant and jealous in examining the
evidence in support of the instrument, in favour
of which it ought not to pronounce unless the
suspicion is removed and it is judicially satisfied
that the paper propounded does express the true
will of the deceased.
Evidence Act (1 of 1872), S.45-Expert evidence
to prove that signature of testatrix on will was
forged-Direct evidence that she signed the will-
It is not necessary to refer to expert evidence.
The opinion of a handwriting expert is, no doubt
admissible S.45. What value is to be attached to
that opinion in a given case is, however an
entirely different Matter. Expert's opinion with
respect to the handwriting must always be
received with great caution. There certainly may
be and perhaps are cases where the handwriting
experts opinion may be of assistance to the court
in coming to a conclusion as to the genuineness
of disputed hand-writing. But the art of forming
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opinion by comparison of hand-writing is
essentially empirical in character and error is
seldom inseparable from such opinions. Where
however, there is direct and trustworthy evidence
of persons who had actually seen the signing of
the document by the testatrix, it is not necessary
to refer to or rely on the expert opinion.
(L) Will-Proof of-Evidence-Conspiracy against
witnesses to concoct the will alleged-Terms of
will natural and proper-Execution and attestation
proved by disinterested witnesses Testamentary
capacity established-Conspiracy to concoct the
will, held could not be attributed.
AIR 1979 NOC 46 (CAL.,)
Saktirani Ghosh Vs. Gautam Ghosh
(A) Succession Act (39 of 1925) S.63-Will-
Proof of execution and attestation-Onus.
The mode of proving a will does not ordinarily
differ from that of providing any other document
except as to the special requirement of attestation
prescribed by S. 63 of the Succession Act. Proof
in either case cannot be mathematically precise
and certain and so the test should be one of the
satisfaction of a prudent mind in such matters.
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The onus must be on the propounder and in the
absence of suspicious circumstances surrounding
the execution of the will, proof of testamentary
capacity and signature of the testator as required
by law may be sufficient to discharge the onus.
AIR 1985 CALCUTTA 349
Smt.Chinmoyee Saha V/a Debendral Lal Saha and others
A) Succession Act (39 of 1925). Ss.59, 61 and 63 - Will
- Proof - Suspicious circumstances - Due execution and
attestation of Will as well as sound disposing mind of
testarix proved - Court cannot refuse to grant probate
when testatrix has made only some of her grandchildren
as legates to exclusion of other near relations.
AIR 1994 GUJARAT 42
Smt.Multivahuji S/o Goswami Goverdhaneshji Girdharlalji
V/S Smt Kalindivahuji and others.
(A) Succession Act (39 of 1925), Ss.268 and 295 -
Proceeding for grant of probate - Same becoming
contentious on objections as to whether testator was in
disposing state of mind and whether will was duly
executed and attested raised - It is to be treated as regular
suit - However, issues to be tried are limited, viz.
Whether testator was of sound and disposing state of
mind and whether will was duly executed and attested.
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AIR 2013 SUPREME COURT 2088
M.B.Ramesh (D) By Lrs. V/s K.M. Veeraje Urs (D) by Lrs. & Ors.
(F) Succession Act (39 of 1925), S.63 - Evidence Act (1
of 1872), Ss. 90, 68 - Will - Execution - Proof by aid of
S. 71 of Evidence Act - Attestator examined not specific
as to other attestator signing in presence of testator and
testator executing Will in his presence Attestator
examined however specific that other attesting witness
was present at time of writing of Will - Will also
registered on next day - Property bequeathed was also
ancestral property of testator- And testator would
therefore desire that it goes to relatives on her side and
not to step son - In view of attendant circumstance
inference as to due attestation by other attestator can be
raised by aid of S.71.
92) The burden is on plaintiff Surekhadevi of O.S.No.1573/2001 to
prove that she is alone entitle to receive deposits under certificates
bearing No.150254289 and 150254293 as nominated of her husband
Sampath Singh Bohra amounting to Rs.7,00,000 and Rs.8,00,000/-
respectively. As the said plaintiff Surekhadevi contention that her
deceased husband Sampath Singh Bohra nominated to receive the
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matured Fixed Deposit in the event of his death prior to the maturity
dates and she is alone entitled to receive the same since her husband
died on 18/11/2000 and both fixed deposits matured on 29/11/2000 and
11/12/2000 respectively. But the said plaintiff Surekhadevi not
examined as she not came in the witness box and not deposed the
evidence whereas the defendant No.2 in OS.No.2731/2002 Lokesh
Singh who is S/o Surekhadevi in his examination-in-chief deposed the
evidence that his mother is not unwell and unable to attend to give
evidence and is deposing the evidence on her behalf as she executed
the GPA in his favour on 10/11/2006. That relating to said Fixed
deposits the defendant No.2 in OS.No.15743/2001 Dinesh Singh (who
is the plaintiff in OS.No.2731/2002) objected for release of fixed
deposit amount in favour of his mother Surekhadevi contending that he
is having share in the said fixed deposits amount. The defendant No.1
in OS.No.15743/2001 is the M/s Global Trust Bank Ltd.,
Sadashivanagar Branch, Bengaluru, afterwards changed as Oriental
Bank of Commerce is the defendant No.1 in OS.No.15743/2001 is in
the said bank deceased Sampath Singh Bohra has kept fixed deposit of
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Rs.7,00,000/- and Rs.8,00,000/- and now the plaintiff Surekhadevi in
OS.No.15743/2001 claiming said amount, as she is nominated for
receiving the said matured amount in case of death of Sampath Singh
Bohra before the date of maturity of fixed deposits. The defendant No.1
Oriental Bank of Commerce in OS.No.15743/2001 filed written
statement admitting that Sampath Singh Bohra kept fixed deposit of
Rs.7,00,000/- and Rs.8,00,000/- in their bank. But the legal heirs of
Sampath Singh Bohra started disputing rights and claims of plaintiff in
receiving the amount as nominee of Sampath Singh Bohra. Hence the
Bank is unable to release the amount. Further the legal Advisor insisted
for getting probate from competent court. Hence it was insisted the
plaintiff Suekhadevi for furnishing the probate issued by the competent
court. But the said Bank defendant No.1 also not examined in this suit
and not marked any documents. In OS.No.2731/2002 the plaintiff
Dinesh Singh examined as PW.1 and he marked ExP108 certificate of
Bank Deposit dated 06/9/2000 for Rs.7,00,000/- and ExP109
Certificate of Bank Deposit dated 25/09/2000 of Rs.8,00,000/-. That as
per ExD38 letter dt.10/09/2000 issued by Global trust Bank Limited.,
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Bangalore to Sampath Singh, intimation was given that Surekhadevi is
registered as nominee under No.2702 and 2792 for the deposits amount
1. Deposit No.150254289 of Rs.7,00,000/-, 2. Deposit No.150254293
of Rs.8,00,000/.
93) The burden is on the plaintiff of O.S.No.15743/2001 Dinesh
Singh to prove that he is entitle for sharing in the properties mentioned
in Schedule 1(a), Schedule 1(b), Schedule-2, Schedule-3, and
Schedule-3(a), Schedule-4, Schedule-5, Schedule-6, Schedule-7 of
plaint. The main contention of the plaintiff Dinesh Singh in
OS.No.2731/2002 is that the suit schedule properties are self acquired
properties of his father Sampath Singh Bohra and died intestate. Hence
he and defendants No.1 to 5 are entitle for share in the suit schedule
properties and he is entitle for 1/6th share in the properties. The said
plaintiff Dinesh Singh of OS.No.2731/2002 is the defendant No.2 in
O.S.No.15743/2001 and he deposed evidence as PW.1 as discussed
above and marked ExP1 to ExP125.
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94) Whereas the defendant No.1 in OS.No.2731/2002 is Surekhadevi
W/o late Sampath Singh Bohra, as she has filed written statement in
length as discussed above but she has not led oral evidence. That the
defendant No.1 Surekhadevi and her sons defendants No.2 and 3 have
filed common written statement. The defendant No.1 is material person
ought to have depose the evidence before the court, but she has not
come in the witness box, whereas the defendant No.2 Lokesh Singh
deposed evidence as DW.1 as discussed above and the main contention
of defendant No.2 is that the schedule-I(A)&(B) properties mentioned
in the plaint are purchased by the father of the plaintiff in the name of
defendant No.1/Surekhadevi. Hence his mother Surekhadevi is the
exclusive and absolute owner in possession of the said properties and
defendant No.1 was also having individual income from her
Automobile business and she was also income tax and wealth tax
assessee in her individual capacity for the last 29-30 years. Hence
defendant No.1 become the absolute owner of suit schedule 1(A) and
1(B) properties and she has gifted suit schedule 1(A) property in favour
of defendant No.3 by way of registered gift deed dated 23/01/2007. The
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said gift deed is marked as ExD110, as per it the defendant
No.1/Surekha Devi gifted suit schedule 1(A) property to her son Rajesh
Singh who is the defendant No.3 in O.S.No.2731/2002. The ExD175 is
the sale deed regarding purchase of said suit schedule 1(A) property by
Surekhadevi W/o Sampath Singh Bohra from Susheelamma W/o N.
Shivananjappa. Then burden is on the defendant No.3 Rajesh Singh
and defendant No.1 Surekhadevi in OS.No.2731/2002 to prove
regarding the Gift Deed dated 23/01/2007 marked as ExD110, as both
have filed common written statement defendant No.2, but they have not
deposed the evidence to prove said document ExD175 regarding
purchase of suit schedule 1(A) property by Surekhadevi out of her own
income and same was gifted by her to defendant No.3. That DW.1
deposed the evidence regarding said ExD110 and ExD175.
95) Further the contention of DW.1 in his examination-in-chief that
his father Sampath Singh Bohra executed WILL relating to the family
properties. The ExD4 WILL is confronted to PW.1 Dinesh Singh in his
cross-examination by defendant No.4 and 5 counsel and shown the
signatures on the page Nos.1 to 21 as they are all signature of his
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father, but witnesses denied the same. The court marked WILL as
ExD4 for reference purpose. The defendant No.2 in OS.No.2731/2002
examined the witness DW.2/N.P. Ganapathi S/o Poovaiah stating that
he is attesting witness ExD4 WILL said to have been executed by
Sampath Singh Bohra and in the examination-in chief of DW.2 the
signature of DW.2 is marked as ExD4 (a) and DW.2 identified the
signatures as the said signatures of Sampath Singh Bohra and same are
marked as ExD4(b) to ExD4(x). The contention of the plaintiff Dinesh
Singh is that the said WILL ExD4 is created document and signatures
found on the said WILL are not the signatures of his father Sampath
Singh Bohra. The defendants No.1 to 3 of O.S.No.2731/2002 have
examined the witness DW.3/ N. Jayaprakash S/o L. Krishnoji Rao,
Advocate Bengaluru who is said to have been drafted the WILL ExD4
on 01/07/2000 and the chief evidence of said witnesses was recorded
by the court as discussed above. The DW.3 deposed the evidence that
on 01/07/2000 he has drafted the WILL ExD4 and he went to Sub-
Registrar's office and got it registered Sampath Singh Bohra the testator
of the Will came with him and discussed with him about his intention
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to execute the WILL and accordingly he drafted the WILL and got it
registered and he subscribed his signature of ExD4.
96) The ExD4 WILL discloses that Sampath Singh Bohra S/o L.C.
Bohra executed the said WILL, as it is mentioned in the said WILL that
Sampath Singh Bohra is owner of immovable property bearing
No.37/1, 1st floor, 8th main road, Vasanthnagar, Corporation Ward No.
78 together with the structures thereon and he acquired the same under
the Registration Sale Deed dated 11/11/1992 and further he is owner of
immovable property bearing Corporation No.135/91 (Old No.39/9)
Subedar Chatram Road, Seshadripuram, Ward No.27, Bangalore and
he acquired the said property under Registered Sale deed dated
26/09/1990. Further he is owner of immovable property bearing
No.314C situated at Kenchanahalli and Haligevaddaralli, Kengeri
Hobli, Bangalore South Taluk and acquired the said property by
allotment by the Ideal Homes Co-operative Society Ltd., approved by
the Bangalore Development Authority and obtained possession
certificate on 22/12/1977. Further he is the owner of HUF property
situated at Bilawara village, Jodhpur District, Rajasthan. Further he is
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hold savings bank account in SB A/c No.17047 in his individual name
in Syndicate bank, Vasanthnagar, Bengaluru. Further he is kartha of
HUF current Account in CAA 744 is standing in the name of M/s G.L.
Bohra and sons and operating the same. Further he is having license
Revolver, one stone curio, one carved table and Car bearing No.KA-
04/P-3817 as described as item No.1 to 8 in the said Will. It is further
mentioned in the said WILL Sampath Singh Bohra bequeathing item
No.1 of 'A' schedule as described in item No.1 of B schedule to his
wife Surekhadevi and further during life time of his wife, his son
Rajesh Singh along with family members entitled to state in item No.1
of B schedule property. Further after the death of his wife item No.1 of
suit schedule property were devolve to his third son Rajesh Singh.
Further he bequeathed item No.6 of A schedule property in item No.2
of B schedule to his wife Surekhadevi and also bequeathed the Fiat Car
bearing No. KA 04 3817 in his wife Surekhadevi and also bequeathed
¼ share from out of item No.7 of 'A' schedule property which is more
fully described in item No.4 of the B schedule but his wife
Surekhadevi who is undivided ¼ share out of the proceeds from the
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current account No. CAA 744 of Syndicate bank, Vasanhnagar Branch,
Bengaluru to deal with same in one manner she choose. Further he
bequeathed all the jewels which is described in item No.5 of B
schedule along with all movable and immovable properties to his wife
Surekhadevi. It is further mentioned in the WILL that item No.2 of A
schedule property which is more fully described in schedule C shall
devolve upon his first son Dinesh Singh who is the absolute owner of
the said property. Further he bequeathed his license Revolver, Stone,
Curio, one Carved table mentioned as item No.8 in A schedule
described in item No.2 of C schedule to his first son Dinesh Singh.
Further item No.3 of A schedule which is more fully described in D
schedule shall devolve to his daughter one and G.S.Sushma S/o
Praveen Chajjed to Anu Lalvani W/o Anil Lalvani jointly as absolute
owners. Further he bequeathed item No.4 of A schedule property to his
second son Lokesh Singh which is more fully described in E schedule
and who was after his death inherited all the tenancy right and shall
entitled to all the profits and goodwill. Further he bequeathed item
No.5 of A schedule which is more fully described in the F schedule in
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his 3 sons (1) Dinesh Singh (2) Lokesh Singh and 3) Rajesh Singh in
equal share. Further he bequeathed ¼ share of item No.7 of A schedule
property which is more fully described in item No.2 of F schedule
equally to his sons Dinesh Singh, Lokesh Singh and Rajesh Singh who
shall be entitled ¼ share each from out of the proceeds of the current
account No.CAA 744 of Syndicate Bank, Vasanthnagar branch,
Bengaluru. Further, he is an Income Tax Assessee and regularly paying
the statutory liabilities to the Government and that there are any
statutory liabilities in relation to his estate as on the date of his
death,his wife Surekha Devi shall discharge all such statutory liabilities
arising out of his estate. Further it is mentioned that the Will shall come
into force from the date of his death.
97) The DW.2 is said to have been the attesting witness of ExD4
WILL alleged to have been executed by Sampath Singh Bohra. The
said DW.2 is cross-examined by the plaintiff's counsel and said DW.2
deposed evidence that "It is true to suggest that defendants No.2 is
residing in the ground floor, I am residing in the first and second floor.
My wife is paying Rs.63,000/- p.m. to defendant No.2". The DW.2
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further deposed evidence that "It is true to suggest that my wife is
running P.G. in the second floor but it is false to suggest that "I am one
of the interested witness. Further in the cross-examination DW.2
deposed the evidence that "ನನನ ಹಹಹಡತ 2 ನಹನ ಪಪತವವದಯ ಆಸಸಯಲಲ ಪ ಜ
ನಡಹಸಸತಸದಸದ ತಹಗಳಗಹ 71000 ನಸನ ಬವಡಗಹ ಕಹಕಡಸತವಸರಹ. ನನನ ತಹದಹಯ ಹಹಸರಸ ಎನನಟ. ಪಪವಯಯ
ಅಹತ. ನನನ ತಹದಹಗಹ ನವನಸ ನನನ ತಮಮ ಇಬಬರಸ ಮಕಕಳಸ ಇದಹದನವಹ . ನನನ ಅಫನಶಯಲನನಹನಮನ
ಗಣಪತ ಅಹತ ಇದಹ. ನನನ ಶವಲವ ದವಖಲವತಗಳಲಲ ನನನ ಹಹಸರಸ ಗಣಪತ ಅಹತ ಇದಹ. ಕವರನ ನಹನ
ಸಎಬ 6686 ನನಗಹ ಸಹನರದಸದ ಇತಸಸ. ಆ ಕವರಸ ಎನನ.ಿ ಮಣರವರ ಹಹಸರನಲಲ ಇತಸಸ ಎಹದರಹ ಸವಕಕಯಸ
ನಮಮ ಊರಲಲ ನನಗಹ ಎರಡಸ ಹಹಸರಸಗಳಹದ ಕರಹಯಸತಸದದರಸ, ಮಣ ಆಲಯವಸನಗಣಪತ ಅಹತ
ಕರಹಯಸತಸದದರಸ ಅಹತ ಹಹನಳಸತವಸರಹ. ಈಗ ನನಗಹ ತಹಕನರಸಸತಸರಸವ ಬ-ಎಕನಕ ಟವಪಕನಕ ಕನನಫಪಹಟನ
ಮವಡದದರಹದ ಮತಸಸ ಅದನಸನ ಸವಕಕಯಸ ಒಪಪದದರಹದ ಮತಸಸ ವಕನಲರಸ ಅದನಸನ ಮಮವನದಹಕಹದಗಹ
ಹವಜರಸಪಡಸದದರಹದ ನಪ 125 ಅಹತ ಗಸರಸತಸಲವಯತಸ. ಆರನ.ಟ.ಒ ಆಫನಸನಲಲ ನವನಸ
ಎನನ.ಪ. ಮಣ ಅಹತ ಐಡಹಹಟಫಕಹನಶನನ ಪಪಪಫನ ಅನಸನ ಕಹಕಟಸಕ ಕವರನಸನ ನಹಕನಹದಣ
ಮವಡಸಕಹಕಹಡದಹದನನಹ ಎಹದರಹ ಸವಕಕಯಸ ಅ ಕವಲಕಹಕ ಐಡಹಹಟಫಕಹನಶನನ ಫಪಪಫನ ಅನಸನ
ಕಹಕಡಸತಸರಲಲಲ ಅಹತ ಹಹನಳಸತವಸರಹ". Therefore the ExP125 is "B" extract of Car
No.CAB 6686 transferred in the name of N.P. Mani S/o N.T. Poovaiah.
The DW.2 admitting said ExP125 and he is deposed that he is also
called by name Mani. But to prove said fact that he is called by both
name Mani @ Ganapathi he has not produced any other documentary
evidence. Further the wife of DW.2 is running a P.G. in the building
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belonging to defendant No.2 Lokesh Singh on rental basis. This goes to
show that he is well acquaintance with defendant No.2. Further on
ExD4 WILL another witness N.P.Subbaiah was signed but the said
witness is not examined by the defendants No.1 to 3 of OS.2731/2002
because DW.2 evidence discloses that he is interested witness. Further
as per contention of defendants No.1 to 3 in OS.No.2731/2002
Sampath Singh Bohra executed ExD4 WILL on 01/07/2000. The
plaintiff of said suit in OS.No.2731/2002 Dinesh Singh denied the
execution of said WILL by Sampath Singh Bohra as per plaintiff
Dinesh Singh on 01/07/2000 his father Sampath Singh Bohra was
attended the funeral function of their relative Champalal. In the cross-
examination of DW.2 ExP111 Rajasthan Newspaper was confronted
stating that regarding death of published said Champalal in the said
newspaper. But DW.2 deposed that he do not know who is Champalal.
The ExP110 is Rajasthan Newspaper dated 03/07/2000 wherein there is
publication about death of Champalalji Bantiya and ExP111 is
translation copy of Ex.P10.
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98) Further the ExD4 WILL discloses that it was prepared on
01/07/2000, as there is averment in the last page that the witnesses
No.1 and 2 Ganapathi and Subbaiah have signed by putting date as
01/07/2000, but in the said WILL on back side of the first page of said
WILL, there is signature of Sub-Registrar and said WILL was
registered on 26/07/2000. The ExP112 Hindi Newspaper Pathrika
dated 20/11/2000 of Bangalore edition wherein there is publication that
Sampath Singh Bohra died on 18/11/2000 and ExP113 is Uttavana
ceremony regarding death of Sampath Singh Bohra. Further death of
Sampath Singh Bohra is admitted by plaintiff and defendants No.1 to 5
in OS.No.2731/2002. But the defendant No.2 is examined as DW.1 and
attesting witness Ganapathi examined as DW.2 in their evidence not
deposed that why there is delay of registration of the WILL on
26/07/2000 because as per the said DW.1 and DW.2 Sampath Singh
Bohra executed the said WILL ExD4 on 01/07/2000. But there is delay
of 25 days in registering the said WILL, hence the said delay is not
properly explained. Further on this aspect the plaintiff counsel cross-
examined DW.2 and he deposed the evidence that "ದನವಹಕ 26/07/2000
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ರಹದಸ ನವನಸ ಸಬನ ರಜಸವಕರನ ಕಛಹನರಗಹ ಹಹಕನಗಲಲ ಎಹದರಹ ಸವಕಕಗಹ ನವನಸ ಹಹಕನಗಲಲ ಏಕಹಹದರಹ
ಅವಶಯಕತಹ ಇರಲಲಲ ಅಹತ ಹಹನಳಸತಹನನಹ". Further the DW.3 N. Jayaprakash Rao,
Advocate, as per the said DW.3 he drafted ExD4 WILL and in the said
ExD4, DW.3 also signed as drafted by him. But he has not put the date
i.e. on which date he signed on the said WILL as scribe. In the cross-
examination of DW.3 by plaintiff counsel, the said witness denied the
suggestion that "It is false to suggest that I had not gone to Sub-
Registrar's office. The signature of the witness was identified by one
N.P. Subbaiah who is my client". Therefore as per the DW.3 attesting
witness of the WILL N.P. Subbaiah is his client. But the said material
witness is not examined by the defendants of O.S.No.2731/2002.
Further DW.3 also not clarified why there is delay in registration of
WILL on 26/07/2000 even though he has drafted the WILL on
01/07/2000. These are the grounds creates doubt regarding the
genuineness of the WILL. The plaintiff Dinesh Singh denying
execution of ExD4 WILL by his father Sampath Singh Bohra. Under
the circumstances the heavy burden lies upon the defendants No.1 to 3
of OS.No.2731/2002 to prove said WILL and also signatures on said
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WILL are of Sampath Singh Bohra, because the plaintiff denied the
signatures ExD4 (b) to ExD4 (x) are not the signatures of Sampath
Singh Bohra and his father used to sign as S.S. Bohra. The said plaintiff
Dinesh Singh marked ExP114 registered lease deed said to have been
executed by Sampath Singh Bohra by signing as S.S.Bohra. In the said
ExP114 the signatures S.S.Bohra marked as ExP114(a) to ExP114(e)
contending that the said signatures are all Sampath Singh Bohra.
99) That as per plaintiff Dinesh Singh signatures in the ExP114 are
all his father. Whereas the DW.1 marked ExD179 lease cum sale
agreement wherein Sampath Singh Bohra lease cum sale agreement
wherein Sampath Singh Bohra signed as Sampath Singh Bohra. That
in ExD4 signatures all marked as ExD4 (b) to ExD4(x) stating that they
belong to Sampath Singh Bohra and he signed in the said document.
But on perusal of the signature from ExD4(b) to ExD4(x) there are
slight variation in the said signatures. Further the plaintiff has marked
ExP6 complaint filed by Sampath Singh Bohra before Station Officer
Officer, High Grounds Police Station, Bengaluru stating that in the said
ExP6 Sampath singh signed. The said document is not denied by
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defendants No.1 to 3. As discussed above ExP114, ExP6, ExD179 and
ExD4 are on record, it is contended by plaintiff and defendant No.2
that in all these documents Sampath Singh Bohra signed, but to prove
the signatures of Sampath Singh Bohra in ExD4 marked as ExD4(b) to
ExD4(x) in comparison with the admitted signature of said Sampath
Singh Bohra, the defendants No.1 to 3 have not made any effort to refer
the said document to the hand writing expert for comparison of the
disputed signature of Sampath Singh Bohra with admitted signatures.
Therefore prima facie the defendants No.1 to 5 of OS.No.2731/2002
are failed to prove the WILL/ExD4. The citations referred by the
plaintiff counsel in OS.No.2731/2002 relating to WILL as discusses
above applies to this case in hand, since the genuineness of the WILL
and execution of WILL/ExD4 by Sampath Singh Bohra is not proved
by the defendants No.1 to 3 in the said suit and citations referred by
said defendants No.1 to 3 does not applies their defence.
100) The plaintiff contended that his father owned ancestral house
property situated at Bilara village, Jodhpur district, Rajasthan state
measuring approximately 1200 sq. constructed house i.e. plaint
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schedule-6 property. But the plaintiff has not mentioned the property
number and boundary of the said property in the plaint schedule-6.
Further the plaintiff Dinesh Singh has not produced documents relating
to the house property situated at Bilara village, Jodhpur district of
Rajasthan State standing in the name of his father Sampath Singh.
Hence the plaintiff failed to prove that the suit schedule item No.6
mentioned in OS.No.2731/2002 is their ancestral property. Further the
plaintiff Rajesh Singh has not produced the documents relating to suit
schedule item No.6. The defendant No.2 Lokesh Singh has marked
ExD11 regarding suit schedule item No.1 property purchased in the
name of Surekadevi W/o Sampath Singh from Susheelamma W/o late
Shivananjappa. Further the ExD12 and ExD13 are certified copies of
the sale deeds regarding purchase of suit schedule 1(a) property by
Sampath Singh Bohra from Susheelamma W/o Shivananjappa. Further
the defendant No.2 marked ExD107 is certified copy of the sale deed
regarding purchase of suit schedule item No.1(b) by defendant No.1
Surekadevi from Parvathamma W/o S.M. Ajjampura on 21/04/1975.
The ExD109 is certified copy of the sale deed regarding purchase of
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suit schedule 3A property by defendant No.2 Lokesh Singh from
Meenakshi Ammal W/o late Muthukali Chettiar. That relating to suit
schedule item No.5 (iv) 4 Diamond Bangles ii) Cash on hand
Rs.50,710/- the plaintiff Dinesh Singh has not produced any
documents. That suit schedule 5 (ii) is Fiat Uno Car bearing No. KA 04
P 3817 the plaintiff has not produced and marked any documents,
where as DW.1 marked 'B' extract copy of said vehicle marked as
ExD9, wherein the name of Sampath Singh appeared as registered
owner of the said vehicle and validity period of the said vehicle is from
26/08/1999 to 25/08/2014. Hence the validity of the said vehicle is
already over. The plaintiff has not produced any further document
relating to the extension of fitness i.e., fitness certificate of the said
vehicle. Further the original documents of the said vehicle are also not
produced by the plaintiff Dinesh Singh. Further schedule 5 (iii)
property is amount of Rs.8,17,415/- standing in the account No.17050,
but the plaintiff Dinesh Singh has not produced any document relating
to the said account standing in the name of his father Sampath Singh.
Further the plaintiff Rajesh Singh in schedule-5 mentioned that debt to
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be realized from the persons (a) T.N.Suresh-Rs.11,00,000/- (b)
Chandrakanth Rs.2,00,000/- (c) Gurushastri Mutt-Rs.40,000/- amount
standing in HUF A/c of the family Rs.5,46,326=12 paise, but relating
to this debt the plaintiff Dinesh Singh has not produced any documents.
Therefore plaintiff Dinesh Singh has failed to prove the suit schedule-5
properties their joint family properties and he is having share in the
said property.
101) The Plaintiff cited suit schedule item No.2 property bearing
vacant site No.314C situated in private layout at Kenchanahalli village,
Kengeri hobli, Bengaluru south taluk. That relating to suit schedule
item No. property of OS.No.2731/2002 the plaintiff Dinesh Singh has
not produced any documents. The suit schedule-3B property is vacant
site No.2382 Ist 'A' Main road, IIIrd cross, HAL III Stage, BDA
Layout, Vimanapura Post, Bengaluru measuring 30 x 40 feet. The
plaintiff Dinesh Singh on 04/07/2017 filed memo for deleting the
schedule-3B property and also defendant No.7 from the suit, hence on
04/07/2017 this court passed order deleting Schedule-3B property and
defendant No.7 from the suit OS.No.2731/2002 and accordingly
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Schedule-3B property and defendant No.7 was deleted from
OS.No.2731/2002, hence question of discussing about said schedule-
3B property is not necessary and also giving findings on Additional
Issues No.3 and 4 relating to the said property is also not necessary.
The defendants No.1 to 5 in OS.No.2731/2002 have failed to prove
WILL said to have been executed by husband of defendant No.1 and
father of defendants No.2 to 5 and plaintiff in OS.No.2731/2002 as per
ExD4. That admittedly Sampath Singh Bohra came from Bilara village
of Jodhpur District in Rajasthan state to Bengaluru and he acquired
properties in Bengaluru by his self earnings. There is no document that
during the life time Sampath Singh Bohra was effected partition in his
properties among his children and wife. That as per ExP3
Memorandum regarding acknowledgement of Rights and mutual
obligations ad liabilities in respect of her properties mentioned in the
said document relating to properties Corporation No.37 and 37/1 and
site No.314/C of corporation No.135/91 effected between Sampath
Singh and his wife and children. The PW.1 has marked the said
document ExP3 in his evidence. But the said document does not
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disclose Sampath Singh Bohra was effected partition in his properties
mentioned in the said document. The plaintiff Dinesh Singh of
OS.2731/2002 failed to prove that he is having share in suit schedule
items No.5 and 6, since no documents are produced relating to said
properties. Further relating to suit schedule item No.2 & 3 properties
the plaintiff Dinesh Singh has not produced any documents. Further
relating schedule-3 Corporation No.135/91 of Shedradripuram
Bengaluru there is no pleading and oral evidence of plaintiff Dinesh
Singh in OS.No.2731/2002. The suit schedule property in item No.1
purchased in the name of defendant No.2 Lokesh Singh and suit
schedule item No.1 (a) purchased in the name of Sampath Singh Bohra
suit schedule 1(b) property purchased in the name of defendant No.1
Surekhadevi and suit schedule item No.3 (a) purchased in the name of
defendant No.2 Lokesh Singh by Sampath Singh Bohra out of his own
income. The plaintiff Dinesh Singh in OS.No.2731/2002 is having
1/6th share in the properties schedule item No.1, schedule item
No.1(a), schedule item No.1(b), schedule item No.3(a).
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102) That relating item No.4 of OS.No.2731/2002 Fixed Deposit
Nos.15024289 amounting to Rs.7,00,000/- and F.D.No.150254293
amounting to Rs.8,00,000/- kept in M/s Global Trust Bank Ltd., in the
name of Sampath Singh Bohra, plaintiff Surekhadevi in
OS.No.15743/2001 prays for release of said Fixed Deposit amount,
which is only subject matter in said suit OS.No.15743/2001 and she
contends that her husband had nominated her to said Fixed Deposits, he
died before maturity of said Fixed Deposits. Hence she is only nominee
to the Fixed Deposits liable to get the amount from the defendant No.1
Bank. But the plaintiff Dinesh Singh in OS.No.2731/2002 contending
that said Fixed Deposits are also joint family property and in the said
amount he is also having share. Further in OS.No.15743/2001 Dinesh
Singh (plaintiff in OS.No.15743/2001) impleaded as defendant No.2
and contested in the said suit claiming the same contention that the said
Fixed Deposits are belongs to their joint family. In the order sheet of
O.S.No.15743/2001 dated 21/01/2003 the court passed order that the
allowing the memo filed by plaintiff Surekha Devi and directed the
defendant No.1 Bank to pay interest at the prescribed rate for savings
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Bank account from the date of maturity of deposit till 01/02/2003 and
the plaintiff, defendant No.2 or other necessary parties are directed to
make an application to defendant No.1 bank to renew the Fixed
Deposit to comply with the requirements of the bank for renewal of
Fixed Deposit initially for a period of one year. The parties are at
liberty to renew the said Fixed Deposit for the period as per their
convenience. In the event of renewal of Fixed Deposit, the defendant
No.1 Bank is directed to pay the prevailing interest rate as per the
guidance of order sheet. Further in order sheet dated 17/03/2007 in
OS.No.15743/2001 the court passed an order that Dinesh Singh has
filed affidavit evidence that notice to other side. The other parties have
not filed affidavit evidence today. It is taken that they have not filed.
Counsel for defendant No.1 filed a memo that defendant No.1 would
pay the proceeds of Fixed Deposit as per the Fixed Deposit in
OS.No.2731/2002 and there could be direction to renew the Fixed
deposit from time to time till 03/07/2007 is finally dispose. The amount
in Fixed Deposit is ordered to be renewed as sought. Further in the said
suit OS.No.15743/2001 the order sheet dated 25/03/2011 discloses that
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the application filed by the defendant No.2 under Order 16 Rule 6 CPC
is allowed. The defendant No.1 is Oriental Bank of Commerce directed
to produce 2 Certificates of deposits for Rs.7,00,000/- and
Rs.8,00,000/- respectively, as sought by the defendant No.2 within 15
days from today and then the party was proceed with the further
proceedings in the main suit. The said Fixed Deposits are produced in
the said suit OS.No.15743/2001 by the defendant No.1 Bank through
counsel on 09/09/2011 and on 26/09/2011 the said two Fixed Deposit
receipts were marked as ExP108 and ExP109 in OS.No.2731/2002 in
evidence of PW.1 Dinesh Singh. As per the said ExP108 amount of
Rs.8,00,000/- kept in the name of Sampath Singh Bohra on 25/09/2000
and maturity date mentioned on 11/12/2000 and further ExP109 Fixed
Deposit of Rs.7,00,000/- kept in the name of Sampath Singh in
defendant No.1 Bank on 06/09/2000 and said Fixed Deposit is matured
on 29/11/2000.
103) The defendant No.1 Global Trust Bank in OS.No.15743/2001
filed written statement, but not lead any oral evidence, the said
defendant No.1 contended that Fixed Deposit of Rs.7,00,000/- and
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Rs.8,00,000/- was kept by Sampath Singh Bohra in their bank
nominating the plaintiff Surekha Devi and same were registered as
nominee under Numbers 2702 and 2792 in their bank. The defendant
No.1 bank contended that as per the records Surekha Devi is the
nominee of the said Fixed Deposit amount and the bank has no
objection for releasing the amount as per the direction of the court.
Further ExD54 is letter sent by Surekha Devi to the defendant No.1
Global Trust Bank Ltd., of OS.No.15743/2001 for release of deposit
amount of Rs.7,00,000/- and Rs.8,00,000/- in her favour as she is the
nominee of her late husband Sampath Singh Bohra and who had
nominated her to claim the deposit amount held by him. As per ExD57
and ExD58 said Global Trust Bank Ltd., replied to Surekhadevi. That
as per ExD59 and ExD60 the defendant No.1's higher authority sent
letter to the legal adviser of defendant No.1 Bank to obtain the
probate/letter of administration for settling the claim of Rs.7,00,000/-
and Rs.8,00,000/- Fixed Deposit kept in the name of Sampath Singh
Bohra. The defendant No.1 Global Trust Bank Ltd., admitted that
Sampath Singh, Bohra nominated his wife Surekhadevi to the Fixed
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Deposits Rs.7,00,000/- and Rs.8,00,000/- kept in their bank and
nomination are also accepted. Further as per ExD38 letter
dt.10/09/2000 issued by defendant No.1 Global trust Bank Limited.,
Bangalore to Sampath Singh, intimating that Surekhadevi is registered
as nominee under No.2702 and 2792 for the deposits amount 1. Deposit
No.150254289 of Rs.7,00,000/- 2. Deposit No.150254293 of
Rs.8,00,000/-. Under the circumstances Sampath Singh Bohra
specifically nominated for receiving the said matured Fixed Deposits
amount by his wife Surekhadevi. Under the circumstances the children
of Sampath Singh Bohra and Surekha Devi i.e. plaintiff and defendants
No.2 to 5 in OS.No.2731/2002 are not entitle for any share in the said
Fixed Deposit amount of Rs.7,00,000/- and Rs.8,00,000/- and plaintiff
of OS.No.15743/2001 (defendant No.1 of OS.No.2731/2002)
Surekhadevi alone is entitle to receive the entire Fixed Deposit amount
of Rs.7,00,000/- and Rs.8,00,000/- with accrued interest on the said
Fixed Amount on the date of receipt.
104) That the plaintiff Dinesh Singh in OS.No.2731/2002 claimed
share in Schedule-7, which is mentioned that "Sampath Singh Bohra
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was tenant of shop premises bearing No.100, Subedar Chatram Road,
Bengaluru and the defendant No.2 has handed over this premises to the
owner after receiving Rs.10,00,000/- compensation from the owner and
plaintiff is claiming Rs.1,66,666/- being 1/4th share together with
interest at the rate of 18% p.m. from the defendant No.2". That relating
to schedule-7 property, the plaintiff of OS.No.2731/2002 has not
produced any documents and marked in this case to prove that he is
having 1/4 share in Rs.10,00,000/- received by defendant No.2 as a
compensation from the owner of the property bearing No.100, Subedar
Chatram Road, Bengaluru. Therefore the plaintiff of OS.No.2731/2002
Dinesh Singh is not entitle for share in schedule Items No.4 and 7 of
OS.No.2731/2002.
105) That plaintiff of OS.No.15743/2001 Surekhadevi has not
examined the said suit. But after clubbing of OS.No.2731/2002 in
OS.No.15743/2001, the defendant No.2 in OS.No.2731/2002 Lokesh
Singh commonly examined as DW.1 and the plaintiff of
OS.No.15743/201 is the defendant No.1 in OS.No.2731/2002 and in
the said OS.No.2731/2002 the defendant No.2 Lokesh Singh has also
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Common Judgment C /w O.S.No.2731/2002
deposed the evidence as GPA holder of defendant No.1 as discussed
above and he deposed about the said Fixed Deposits of Rs.7,00,000/-
and Rs.8,00,000/- as contended in said OS.No.15743/2001. As
discussed above Surekhadevi who is the wife of late Sampath Singh
Bohra is nominee of the Fixed Deposits of Rs.7,00,000/- and
Rs.8,00,000/- kept in defendant No.1 Global Trust Bank Ltd., in
OS.No.15743/2001 and she is only entitle to receive the Fixed Deposit
amount with accrued interest, hence it is just and proper to issue
direction to the defendant No.1 Global Trust Bank Ltd., in
OS.No.15743/2001 for release the matured Fixed Deposit
Nos.15024289 amounting to Rs.7,00,000/- and F.D.No.150254293
amounting to Rs.8,00,000/- in the name of Sampath Singh Bohra to his
wife Surekadevi.
106) Further in OS.No.2731/2002 Additional Issue No.1 was framed
on 13/10/2010 that whether the property bearing No.45, 8 th Cross,
HMT Layout, Vishweshwaraiah Nagar, Gangenahalli Bengaluru is
liable for partition as contended the by defendants No.1 to 3. The
ExD44 is produced and marked by DW.2. The ExD44 is certified copy
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of sale deed dated 08/12/01995 regarding purchase of property bearing
No.45, HMT Layout, 7th Cross, Vishweshwaraiah Naar, Gangenahalli,
Bengaluru by Mala Bohra W/o Dinesh Singh from Ramarao S/o
Subbarao. The defendants No.1 to 3 in the written statement filed on
11/06/2002 and also filed additional Written Statement by defendant
No.2 filed on 22/07/2009, wherein there is no prayer claiming share in
the said property. Further defendants No.1 to 3 in OS.No.2731/2002
prays to dismiss the suit of the plaintiff with costs and that decree of
mandatory injunction be passed in favour of defendant No.1 and
against plaintiff directing the plaintiff to cease using and occupying
plaint schedule-I first floor including 2 rooms (without garage which is
in the occupation of defendant No.1) and furnish with occupation by
the defendant No.1 and decree some of Rs.2,38,000/- in favour of
defendant No.1 against the plaintiff by way of damages/mesne profits
from 19/11/2000 till date and further direct enquiry into future mesne
profits. But there is no counter claim relating to the property bearing
corporaton No.45, 8th cross, HMT Layout, Vishweshwraiahnagar,
Gangenahalli, Bengaluru in the written statement filed by the
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defendants No.1 to 3 by way of counter claim. Therefore the said
property is not liable for partition in the said property, since no relief is
claimed in the written statement by the defendants No.1 to 3, hence the
defendants No.1 to 3 are not entitle for relief relating to said property
and defendants No.1 to 3 failed to prove Additional Issue No.1.
Therefore the plaintiff in O.S.No.15743/2001 is entitle for the relief of
mandatory injunction against the defendant No.1 as prayed in view of
discussion made above the plaintiff in OS.15743/2001 proved Issues
No.1 and 2 in the said suit. Further the plaintiff in OS.No.2731/2002
partly proved Issues No.1 to 3. Since the plaintiff is joint family
member as of the defendants No.1 to 3, hence he is not entitle for
mesne profits. Hence plaintiff in OS.2731/2002 failed to prove Issue
No.4. Further the plaintiff has failed to prove by way of documentary
evidence that he is entitle for 1/4th share in the capital amount of Joint
Hindu Undivided family, hence failed to prove Issue No.5. Further
from oral and documentary evidence as discussed above it is clear that
there is no partition taken place in the family of Sampath Singh Bohra
with his children, hence plaintiff Dinesh Singh in OS.No.2731/2002
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proved by way of documentary evidence that he is entitle for 1/6th
share in suit schedule-1, Schedule-1A, Schedule-1B, Schedule-3,
Schedule-3A and failed to prove by way of documentary evidence that
schedule-2, schedule-5, schedule-6, schedule-7 properties are joint
family properties and he is entitle for share in the said properties.
Further it is admitted fact that plaintiff is in possession of suit schedule
No.1 who has hold the said property as joint family property. Hence
defendants No.1 to 3 are not entitled for mandatory injunction to get
the said property from plaintiff. Hence defendants No.1 to 3 in
OS.No.2731/2002 failed to prove Issues No.6 and 7. Further the
defendants No.1 to 3 failed to prove that the suit is bad for mis-joinder
of necessary parties, hence failed to prove Issue No.8. Further the
defendants No.1 to 3 in OS.No.2731/2002 failed to prove that Sampath
Singh Bohra executed WILL on 01/07/2000 bequeathing the properties
and hence defendants No.1 to 3 failed to prove Issue No.9. Further the
plaintiff in OS.No.2731/2002 proved that the suit schedule-3A property
is joint family property as discussed above, and Schedule-3B property
was already deleted from the suit as per order dated 04/07/2017. Hence
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the plaintiff is entitle for 1/6th share in Schedule-3A property and
plaintiff proved Additional Issue No.2 partly. That the suit schedule-3B
property and defendants No.7 are already deleted from the suit in
OS.No.2731/2002 on 04/07/2017. Hence giving findings on Additional
Issues No.3 and 4 does not arise. Further the plaintiff has failed to
prove by way of documentary evidence that he is entitle for 1/6 th share
in schedule item No.7 by way of documentary evidence and hence
failed to prove Additional Issue No.5. Therefore I answer Issues No.1
and 2 in OS.No.15743/2001 in Affirmative. Further I answer Issues
No.1 to 3 in OS.No.2731/2002 partly in Affirmative. Further I answer
Issues No.4 to 9 and Additional Issue No.1 and Additional Issue
No.5 in OS.No.2731/2002 in Negative. Further I answer Additional
Issue No.2 in OS.No.2731/2002 partly in Affirmative.
107) Issue No.3 in OS.No.15743/2001 and Issue No.10 in
OS.No.2731/2002:
In view of above discussion I proceed to pass the following
:ORDER:
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O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 The suit of the plaintiff in OS.No.15743/2001 is decreed with costs.
It is ordered and decreed that the defendant No.1 Bank is directed to release and pay deposits amount kept in deposit No.150254289 of Rs.7,00,000/- and deposit No.150254293 of Rs.8,00,000/- by late Sampath Singh Bohra to plaintiff Surekhadevi nominee of said Sampath Singh with accrued interest up to date of payment.
Draw decree accordingly.
The suit of the plaintiff in OS.No.2731/2002 is partly decreed with costs.
It is ordered and partly decreed the suit of plaintiff Dinesh Singh in OS.No.2731/2002 for partition and separate possession and he is entitle for 1/6th share in the properties schedule-I, schedule-1A, 181 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 schedule-1B, schedule-3A. The defendants No.1 to 5 are directed effect partition and hand over possession of plaintiff's 1/6th share in the properties schedule-I, schedule-1A, schedule-1B, schedule-3A within one month from the date of this order.
In case of default on the part of defendants No1 to 5, the plaintiff is at liberty to get his share in the said properties in due procedure of law.
The counter claim of defendants No.1 to 3 in OS.No.2731/2002 is hereby dismissed.
Draw preliminary decree accordingly. Keep original judgment in OS.No.15743/2001 and certified copy of judgment in OS.No.2731/2002.
(Dictated to the Judgment Writer, same is typed by her. There are several corrections, hence corrected on line in computer by me, then taken print out, then again corrected, signed and pronounced by me in the open court on this 17 th day of December 2020).
182
O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 (Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: Dinesh Singh S/o late Sampath Singh DOCUMENTS MARKED FOR THE PLAINTIFFS: ExP1: Death Certificate ExP2: Sale Deed ExP3: Memo ExP4: Certified copy of HRRP ExP5: Voucher ExP6: Certified copy ExP7: FIR copy ExP8 to Ex.P11: Encumbrance certificates ExP12: Income Tax copy ExP13: Certified copy of Order on IA ExP14: Complaint dated 01.04.2002 ExP15: Memos paper dated 07/02/1996 ExP16 to 19: Photos ExP20: Nomination letter ExP21: Broacher ExP22 to ExP25: Receipts 183 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 ExP26: IT copy ExP27 to ExP33: Income tax assessment order ExP34 to ExP48: Income Tax challans ExP49 to ExP56: Demand notices ExP57 to ExP63: Wealth tax returns ExP64 to ExP71: Wealth tax challans ExP72 to ExP78: Demand notice ExP79: Letter dated 22.04.1987 ExP80 to ExP92: Income tax return document ExP93: Invitation Card ExP94 to ExP101: Acknowledgement ExP102: Sale deed ExP103: Letter (Bank) ExP104: Bill dated 07/12/1995 ExP105: IT Certificate ExP106: Bill dated 12/01/1998 ExP107: Bill dated 03/01/1998 ExP108: Certificate dated 06/09/2000 ExP109: Certificate dated 25/09/2000 ExP110: Hindi newspaper ExP111: English translation of ExP110 ExP112: Hindi newspaper ExP113: English translation of Ex.P112 ExP114: lease deed 184 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 ExP114(a to c): Signatures ExP115: IA in OS.No.6777/1997 ExP116: Judgment and Decree in OS.No.6777/1997 ExP117: Letter to DC ExP118: One agreement ExP120: Partnership deed ExP120(a to c): SignaturesExP121 &ExP122: Envelops ExP123: Notice ExP124: Complaint copy ExP125: 'B' Extract.
WITNESSES EXAMINED FOR THE DEFENDANT/S: DW.1: Lokesh Singh S/o late Sampath Singh DW.2: N.P.Ganapathy S/o Poovaiah DW.3: N. Jayaprakash S/o L. Krishnoji Rao DOCUMENTS MARKED FOR THE DEFENDANT/S: ExD1: Certified copy of deposition in HRC No.2329/1994 ExD1(a): Relevant portion of deposition ExD2 : Certified copy of 'B' Report ExD3: Certified copy of Sale deed dated 10/02/2003 ExD4: WILL ExD4(b) to ExD4(x):Signatures ExD5: Power of Attorney ExD6: Letter copy dated 01/07/2000 ExD7: Certified copy of WILL dated 01/07/2000 185 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 ExD8: Undertaking letter ExD9: Notary copy of RC Book ExD10: Driving License ExD11: Certified copy of Sale deed dated 22/08/1992 ExD12: Certified copy of Sale deed dated 11/11/1992 ExD13: Certified copy of Rectification deed dated 11/11/1992 ExD14: Account Statement ExD15: Account Statement ExD16: Khatha Endorsement ExD17: Receipt ExD18: IT Assessment ExD19: Wealth Tax Assessment ExD20 to ExD22: Copy of Profit and Loss account ExD23 & ExD24: IT returns ExD25 & ExD26: Account of HUF ExD27 & ExD28: IT of HUF ExD29: Valuation Report ExD30: Copy of complaint given to High Ground Police ExD31: Pass book ExD32 & ExD33: Ledger Book ExD34 & ExD35: Day Books ExD36: Letter dated 22/11/2000 ExD37: Death Summary ExD38: Letter dated 10/09/2000 186 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 ExD39 & ExD40: Paying slips ExD41: Postal Acknowledgement ExD42: Complaint copy ExD43: Certified copy of deposition in HRC No.10414/1998 ExD44: Certified copy of Sale deed dated 08/12/1995 ExD45 to ExD47: Accounts extracts ExD48: Copy of plaint in OS.No.6777/1997 ExD49 & ExD50: Certified copy of vakalaths ExD51: Bank certificates ExD52: Certified copy of 'B' reported ExD53: Discharge summary ExD54: Claim petition to bank ExD55 & ExD56: Notary copy of deposits ExD57: Letter dated 20.12.2000 ExD58: Letter dated 23/12/2000 ExD59: Copy of Legal Notice ExD60: Copy of Legal notice dated 07/04/2001 ExD61: Postal acknowledgement ExD62: Income Tax assessment ExD63: Income tax demand notice ExD64: Wealth tax notice ExD65 to ExD67: Demand notice dated 21/02/1981, 08/09/1982 and 05/012/1985 ExD98 to ExD76: Challans 187 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 ExD77 to ExD79: IT demand notice ExD80: Challan dated 16/07/1975 ExD81: IT demand notice ExD82 to ExD84: Assessment order ExD85: IT demand notice dated 30.09.1981 ExD86: Assessment order ExD87 & ExD89: Challans ExD90 & ExD91: Income tax assessment ExD92 to ExD97: Challans ExD98: Voluntary disclosure of income Scheme Certificate ExD99: Voluntary disclosure of income Scheme Challan ExD100: Assessment order ExD101: Challan ExD102: Assessment order ExD103: Challan ExD104: Assessment order ExD105: Voluntary disclosure of income scheme Certificate ExD106: VSIC challan ExD107: Original sale deed ExD108: Mortgage deed ExD109: Certified copy of sale deed dated 23/01/1997 ExD110: Certified copy of gift deed dated 23/01/1997 ExD111: Khatha endorsement ExD112: Khatha Certificate 188 O.S.No.15743/2001 Common Judgment C /w O.S.No.2731/2002 ExD113: Deposit Certificate ExD114: LIC Voucher ExD115: LIC Voucher ExD116: Acknowledgement dated 21/08/1992 ExD117: Acknowledgement extracts ExD118 to ExD174: RTO endorsement ExD175: Original Sale deed dated 22/08/1992 ExD176: Original Rectification Deed dated 11/11/1992 ExD177: Original Sale deed dated 11/11/1992 ExD178: IT return ExD179: Notary copy of lease/sale agreement ExD180: Certified copy of Thumb impression register ExD181: Certified copy of Judgment in OS.No.1782/1994 XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE.189
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